



// 



' LIBRARY 0£jCONGRE§S. | 



UNITED STATES OF AMERICA. 




Security and Reconciliation for the Future. 



rROPOSITIONS AND ARGUMENTS 



ON THE 



liiorgmiiptioit rf i\)t |UkI States, 



*>■ 



BY 



PION. CHARLES SUMNER, 



It^ ^ 



'i-* IJ. Z. A^ 




iVWASHV^ 



BOSTON: 

PRESS OF GEO. C. RAND & AVERY, 3 CORNHILL 



1865. 



Perversely and pitifully you postpone Ihat szirc period of reconciUaiion, not only between the two sec- 
tions — not only between the men of the North and the men of the South — but, more beautiful still, between 
the slnve and his master, without which that true tranquillity, which we all seek, cannot be permanently assured to 
our country. Believe it; only thnnujh such reconciliation, under the sanction of Freedom, can you remove all 
occasion of contention hereafter; only in this loay can you cut off the head of this great rebellion, and at 
the same time extirpate that principde of evil, which, if allowed to remain, must shoot forth in perpetual dis- 
cord, if not in other rebellions; only in this way can you command that safe victory — without which this 
contest will be vain — which will have among its couqaests Indemnity for the Past and Security for the 
Future — the noblest indemnity and the strongest security ever won — because founded in the redemption 
of a race. — Oration of Mr. Sumner on the Origin and Main-Spring of the Rebellion, at New York, November 
27, 1861. 

It will not be enough if we comply with certain forms or constitute a State in name only. Much more 
must be done, and all this must be placed under fixed and irreversible guarantees. Vain will be victory on the 
battle-field if these guarantees are not obtained. It is to make these possible that our armies are now en- 
gaged in the deadly shock. It is in order that the future at least may be secure, that the present is given 
over to blood and slaughter — to graves and epitaphs. And here is the difference between your responsi- 
bilities and those of tlie soldier. The latter sees only the present; but you must see the future also. The 
soldier meets the enemy face to face. The statesman, by wise precautions, provides that the enemy once con- 
quered shall never rise again. Vain is the work of the soldier, if it be not consummated and crowned by 
the wisdom of the statesman. — Speech of Mr. Sumner in the Senate of the United States, .June 13, 1864. 



PROPOSITIONS ON RE-ORGANIZATION. 



In the Senate of the United States, Feb. 
11, 1862, Mr. Sumner submitted the follow- 
ing resolutions, which were ordered to be 
printed : — 

Resolutions (leclarntory of the, relations bettneen the 
United States and the territory once occupied by 
certain States, and now usurped by j)rctended gov- 
ernments toithout constitutional or legal right. 

Whe7-eas certain States, ri[/JiffulIi/ helonginq 
to the Union of the United States, have through 
their respective governments wickedly under- 
taken to abjure all those duties by which their 
connection with the Union was maintained ; to 
renounce all allegiance to the Constitution ; 
to levy war upon the National Govern- 
ment ; and, for the consummation of this 
treason, have unconstitutionally and unlawfully 
confederated together, with the declared pur- 
pose of putting an end by force to the supremacy 
of the Constitution within their respective lim- 
its; and whereas this condition of insurrection, 
organized by pretended governments, openly 
exists in South Carolina, Georgia, Florida, Ala- 
bama, Mississippi, Louisiana, Texas, Arkansas, 
Tennessee, and Virginia, except in Eastern 
Tennessee and Western Virginia, and has been 
declared by the President of the United States, 
in a proclamation duly made in conformity 
with an act of Congress, to exist throughout 
this territory, with the exceptions already 
named ; and whereas the extensive territory, 
thus usurped by these pretended < governments 
and organized into a hostile confederation, he- 
longs to the United States, as an inseparable part 
thereof, under the sanctions of the Constitution, 
to be held in trust for the inhabitants in the 
present and future generations, and is so 
completely interlinked with the Union that it 
is forever dependent thereupon ; anil whereas 
the Constitution, which is the supreme laic of the 
land, cannot he displaced in its rightful operation 
within this territory, but must ever continue the 
supreme law thereof, notwithstanding the doings 
of any pretended governments acting singly or 



in confederation, in order to put an end to its 
supremacy : therefore, — 

1. Resolved, That any vote of secession or 
other act by which any State may undertake 
to put an end to the supremacy of the Consti- 
tution within its territory is inoperative and 
void against the Constitution, and when sustained 
by force it becomes a practical abdication by 
the State of all rights under the Constitution, 
while the treason which it involves still further 
works an instant forfeiture of all those func-_ 
tions and powers essential to the continued 
existence of the State as a body poHtic ; so that 
fi'om that time forward the territory falls under 
the exclusive jurisdiction of Congress, as other 
territory, and the State becomes, according to 
the language of the law, felo-de-se. 

2. That "any combination of men assuming 
to act in the place of such State, and attempt- 
ing to iusnare or coerce the inhabitants thereof 
into a confederation hostile to the Union, is re- 
bellious, treasonable, and destitute of all moral 
authority ; and that ,^uch combination is a usur- 
pation incapable of any constitutional existence 
and utterly lawless, so that every thing dependent 
upon it is without constitutional or legal support. 

3. That the termination of a State under the 
Constitution necessarily causes the termination 
of those peculiar local institutions which, hav- 
ino- no oi-isiin in the Constitution or in those 
natural rights which exist independent of the 
Constitution, arfi upheld by the sole and exclft- 
sive authority of the State. 

4. That Slavery, being a peculiar local in- 
stitution, derived from local laws, without any 
origin in the Constitution or in natural rights, is 
upheld by the sole and exclusive authority of 
the State", and nmst therefore cease legally or 
constitutionally when the State on which it de- 
pends has lapsed ; for the incident must follow 
the principal. 

5. That, in the exercise of its exclusive ju- 
risdiction over the territory once occupied by 
the- States, it is the duty of Congress to see 
that the supremacy of the Constitution is 
maintained in its essential principles, so that, 
everywhere in this extensive territory, Slavery 



ghall cease to exist practically, as it has already 
ceased to exist constitutionally or legally. 

6. That any recognition of Slavery in such 
territory, or any surrender of slaves under the 
pretended laws of such States, by any officer of 
the United States, civil or military, is a recog- 
nition of the pretended governments, to the 
exclusion of the jurisdiction of Congress under 
the Constitution, and is in the nature of aid 
and comfort to the rebellion that has been 
organized. 

7. That any such recognition of Slavery, 
or surrender of pretended slaves, besides 
being a recognition of the pretended govern- 
ments, giving them aid and comfort, is a 
denial of the rights of persons who, by the 
action of the States, have become free, so 
that, under the Constitution, they cannot 
again be enslaved. 

8. That allegiance from the inhabitant and 
protection from .the Government are corre- 
sponding obligations, dependent upon each 
other, so that while the allegiance of every 
inhabitant of this territory, without distinction 
of color or class, is due to the United States, 
and cannot in any way be defeated by the 
action of any pretended government, or by any 
pretence of property or claim to service, the 
corresponding obligation of protection is at 
the same time due by the United States to 
every such inhal)itant, without distinction of 
color or class ; and it follows that inliabitants 
held as slaves, whose ])aramount allegiance is 
due to the United States, may justly look to 
the National Government for protection. 

9. That the duty directly cast upon Con- 
gress by the action of the States is re-enforced 
by the positive prohibition of the Constitution 
that " no State shall enter into any confedera- 
tion," or " without the consent of Congress 
keep troops or ships-of-war in time of peace, or 
enter into any agreement or conijiact with 
another State," or " grant letters of marcpie 
and reprisal," or " coin money," or " emit bills 
of credit," or " without the consent of Congress 
lay any duties on imports or exports," all of 
which have been done by these pretended gov- 
ernments, and also by the positive injunction 
of the Constitution, addressed to the nation, 
that " the United States shall guarantee to 
every State in this Union a republican form of 
government ; " and that, in pursuance of this 
dutv cast upon Congress, and further enjoined 
by the Constitution, Congress trill assume com- 
p'leie jurmliction of such vacated territory where 
such unconstilutional and illegal things have 
been attempted, and will proceed to establish 
therein republican forms of government under 
the Constitution ; and, in the execution of this 
trust, will provide carefully for the protection 
of all the inhabitants thereof, for the security of 
families, the organization of labor, the encour- 
agement of industry, and the welfare of society, 
and will in every way discharge the duties of 
a just, merciful, and paternal government. 



§ 2. 

In the Senate, Feb. 8, 1864, Mr. Sumnek 
submitted the following resolutions, which 
were ordered to be printed : — 

llESOLUTiONS defining the character of the Kational 
contest, and protestinr/ against any premature 
restoration of rebel States without proper guaran- 
ties and safeguards against slavery and fur the 
protection of ihefreedmen. 

1. Resolved, That, in order to determine the 
duties of the National Government at the pres- 
ent moment, it is of the first importance that 
we should see and understand the real charac- 
ter of the contest which has been forced upon 
the United States ; for a failure to appreciate 
this contest must end in a failure of those proper 
efforts which are essential to the re-establish- 
ment of unity and concord ; that, recognizing 
the contest in its real character, as it must be 
recoi'ded bj^ history, it will be apparent beyond 
controversy, that this is not an ordinary rebel- 
lion, or an ordinary war, but that it is absolute- 
ly without precedent, diftering clearly from 
every other rebellion and every other war, — 
inasmuch as it is an audacious attempt, for the 
first lime in history, to found a tvickcd poiver on 
the corner-stone of Slavery ; and that such an 
attempt, having this single object, — whether re- 
garded as rebellion or as war, — is so completely 
penetrated and absorbed, so entirely filled and 
possessed by Slavery, that it can be justly re- 
garded as nothing else than the huge imper- 
sonation of this crime, at once rebel and belli- 
gerent, or, in other words, as Slavery in a?-ms. 

2. That, recognizing the unquestionable 
identity of the Rebellion and of Slavery, so 
that each is to the other as another self, it 
becomes plain that the Rebellion cannot be 
cryshed without crushing Slavery, as Slavery 
cannot be crushed witiiout crushing the Rebel- 
lion ; that every forbearance to the one is a for- 
bearance to the other, and every blow at the 
one is a blow at the other ; that all who tolerate 
Slavery tolerate the Rebellion, and all who 
strike at Slavery strike at the Rebellion ; and 
that, therefore, it is our supremest duty, in 
which all other present duties are contained, to 
take care that the Barbarism of Slavery, in 
which alone the Rebellion has its origin and 
life, is so utterly trampled out that it can never 
spring up again anywhere in the rebel and belli- 
gerent region ; for, leaving this duty undone, 
nothing is done, and all our blood and treasure 
have been lavished in vain. 

3. That, in dealing with the rebel war, the 
National Government is invested with two 
clssses of rights — one the rights of sovereignty, 
inherent and indefeasible everywhere within 
the limits of the United States, and the other 
the rights of icar, or belligerent rights, which 
have been superinduced by the nature and ex- 
tent of the contest ; that, by virtue of the rights 
of sovereignty, the rebel and belligerent region 



is now subjoct to the National Government as 
its only rightful government, bound under the 
Constitution to all the duties of sovereignty, 
and by special mandate bound also " to guar- 
antee to every State a republican ibrm of gov- 
ernment, and to protect it against invasion;" 
thatj^bv virtue of the rights of war, this same 
regimi is subject to all the conditions and inci- 
dents of war, according to tlie established usages 
of Christian nations, out of wliich is derived the 
familiar maxim of public duty, " Indemnity for 
the past and security for the future." 

4. That, in seeking the restoration of the 
States to their proper places as members of the 

^Republic, so that every State shall enjoy again 
its constitutional functions, and every star on 
our national Hag shall represent a State, in re- 
ality as well as in name, cai^e Jiiust be taken tliat 
the RehelUo7i is not alloifed, through any negli- 
gence or mistaken concession, to retain the least 
foothold for future qctivitg, or the least germ of 
future life: that, whether proceeding by the 
exercise of sovereign rights or of belligerent 
rights, the same precautions must be exacted 
against future peril ; that, therefore, any sys- 
tem of " reconstruction " must be rejected, 
which does not provide by irreversible guaran- 
ties against the continued existence or possible 
revival of Slavery, and that such guaranties can 
he primarily obtained only through die agency of 
the National Gnvermnent, u-hich to this end must 
assert a temporary supremacy, military or civil, 
throughout the rebel and belligerent region, of 
sufficient duration to stamp upon this region the 
character of freedom. 

5. That, in the exercise of this essential su- 
premacy of the National Government, a solemn 
duty is cast upon Congress to see that no rebel 
State is prematurely restored to its constitutional 

functions until, within its bordei'S, all prober 
safeguards are established, so that loyal citizens, 
including the new-made freedmen, cannot at any 
time be molested by evil-disposed persons, and es- 
pecially tliat no man there may be made a 
slave ; that this solemn duty belongs to Con- 
gress under the Constitution, whether in the 
exercise of Rights of Sovereignty or Rights of 
War, and that in its performance that system 
of " reconstruction " will be found the best, 
howsoever it may be named, which promises 
most surely to accomplish the desired end, so 
that Slavery, which is the synonyme of the Re- 
bellion, shall absolutely cease throughout the 
whole rebel and belligerent region, and the 
land which it has maddened, impoverished, and 
degraded, shall become safe, fertile, and glori- 
ous, from assured emancipation. 

6. That, in the process of " reconstruction," 
it is not enough to secure the death of Slavery 
throughout the rebel and belligerent region 
only ; that experience testifies against Slavery 
wherever it exists, not only as a crime against 
humanity, but as a disturber of the public peace 
and the spoiler of the public liberties, including 
the liberty of the press, the liljcrty of speech. 



and the liberty of travel and transit ; that ob- 
viously, in the progress of civilization, it has 
become incompatible with good government, 
and especially with that " i-epublican form of 
government " which the United States are 
bound to guarantee to every State ; that from 
the outbreak of this rebel war, even in States 
professing loyalty, it has been an open check 
upon patriotic duty and an open accessory to 
the Rebellion, so as to be a source of uncjues- 
tionable weakness to the national (.-ause ; that 
the defiant pretensions of the master, claiming 
the control of his slave, are in direct conllict 
with the paramount rights of the National Gov- 
ernment ; and that, theretbre, it is the further 
duty of Congress, in the exercise of its double 
powers under the Constitution, as guardian of 
the national safety, to take all needful steps 
to secure the extinction of Slavery, even in 
States professing loyalty, so that this crime 
against humanity, this disturber of the public 
peace, and this spoiler of the public liberties, 
shall no longer exist anywhere to menace the 
general harmony ; that civilization may be no 
longer shocked ; that the constitutional guaranty 
of a republican form of government to every 
State may be fulfilled ; that the Rebellion may 
be deprived of the traitoi-ous aid and comfort 
which Slavery has instinctively volunteered ; 
and that the master, claiming aii unnatural 
property in human flesh, may no longer defy 
the National Government. 

7. That, in addition to the guaranties stipu- 
lated by Congress, and as the cap-stone to its 
work of restoration and reconciliation, the Con- 
stitution itself must be so amended as to pro- 
hibit Slavery everywhere within the limits of 
the Republic ; that such a prohibition, leaving 
all j)ersonal claims, whether of slave or master, 
to the legislation of Congress and of the States, 
will be in itself a sacred and inviolable guaran- 
ty, representing the collective will of the peo- 
ple of the United States, and placing Universal 
Emanci|)ation under the sanction of the Consti- 
tution, so that li'cedom shall be engraved on 
every loot of the national soil, and be Avoven 
into every star of the national Hag, while it 
elevates and inspires our whole national exist- 
ence, and the Constitution, so often invoked for 
Slavery, but at last in harmony with the Dec- 
laration of Independence, will become, accord- 
ing to the holy aspirations of its founders, the 
sublime guardian of the inalienable right of 
every human being to life, liberty, and the 
pursuit of liappiness ; all of which must be done 
in the name of the Union, in duty to humanity, 
and for the sake of permanent peace. 



§3. 

In the Senate, Fob. 8, 1864, Mii. Sum- 
ner submitted the follcwing amendment to the 
Constitution, which was referred to the Com- 



mittee of the Judiciary, and ordered to be 
printed : — 

Amendment of the Constitittion, securing Equal- 
ity before the law, and the Abolition of Slavery. 

" All persons are equal before the law, so 
that no person can hold anotlier as a slave ; and 
the Congress shall have power to make all laws 
necessary and proper to carry this declaration 
into effect everywhere within the United States 
and the jurisdiction thereof." 



§4. 

In the Senate, Feb. 8, 18G4, Mr. Sum- 
ner asked, and, by unanimous consent, ob- 
tained, leave to l)ring in the following bill, 
which was read twice, and referred to the Select 
Committee on Shivery and Freedmen : — 

A Bill to secure Kf/ualit;/ be/ore the law in the courts 
of the United States. 

Be it enacted hy the Senate., and House of Rep- 
resentatives, of the United States of America, in 
Congress assembled, That, in the courts of the 
United States, there shall be no exclusion of any 
witness on account of color. 

Tliis bill was nfterw.irds reported by Mit. Sumner, 
from the Select Coiniiiiltee on Slavery and Freedmen, 
accompanied by an elaborato report exhibiting the ex- 
tent and injustice of this exclusion. It was afterwards 
moved by Mr. Sumner on an Appropriation Bill, and 
is now tlie lav? of the land. It remains to a2>ply this 
principle to the State Courts. 



§5. 

In tue Senate, May 27, 18G4, while the 
Senate had under consideration the credentials 
of certain claimants as senators from Arkansas, 
Mr. Sumner offered the following resolution, 
wliich at a subsequent day was, on his motion, 
referred to the Committee of the Judiciary to 
which the credentials of the claimants were 
referred : — 

Resolution drrlnrinr/ tlmt a, rebel State has no title to 
representdtiini until it has been re-admitted by a 
vote of both Houses of Congress. 

Resolved, That a State pretending to secede 
from the Union, and battling against the Na- 
tional Government to maintain this pretension, 
must be regarded as a rebel State, subject to 
military occupation, and ivithout title' to rejire- 
seniation on this floor until it has been re-admitted 
hy a vote of both Houses of Congress ; and the 
Senate will decline to entertain any application 
for any such rebel State until after such vote 
of both Houses of Congress. 



§6. 

In tue Senate, Feb. 4, 18G5, Mr. Sum- 
ner submitted the following concurrent reso- 
lutions, which, on his motion, were ordered 
to be printed : — 

Concurrent Resolutions declaring the rule in as- 
certaining the three-fourths oj the several States re- 
quired in tlie ratification of a constitutional amend- 
ment. 

Whereas Congress, by a vote of two-thirds of 
both houses, has proposed .an amendment to 
the Constitution prohibiting slavery through- 
out the United States, which, accoi'ding to the 
existing requirement of the Constitution, will 
be valid to all intents and pur[)oses as part of 
the Constitution, when ratified by the legisla- 
tures of three -fourths of the several States ; 
and whereas, in the condition of the country, 
with certain States in arms against the Nation- 
al Government, it becomes necessary to deter- 
mine what number of States constitutes the 
three-fourths required by the Constitution 
therefore, — 

1. Resolved hy the Senate, — the House of 
Representatives concurring, — That the rule 
followed in ascertaining the two-thirds of both 
houses proposing the amendment to the Consti- 
tution should be followed in ascertaining the 
three-fourths of the several States ratifying the 
amendment; that, as in the first case, the two- 
thirds are founded on the simple fact of repre- 
sentation in the two houses, so, in the second 
case, the three-fourths must be founded on the 
simple fact of representation in the government 
of the country, and the support thereof; and that 
any other rule establishes one basis for the prop- 
osition of the amendment and another for its rat- 
ification, placing one on a simple fact and the 
other on a claim of right, while it also recog- 
nizes the power of rebels in arms to interpose a 
veto upon the National Government in one of 'its 
highest functions. 

2. That all acts, executive and legislative, in 
pursuance of the Constitution, and all treaties 
made under the authority of the United States, 
are valid to all intents and purposes through- 
out the United States, although certain rebel 
States fail to participate therein ; and that the 
same rule is equally applicable to an amend- 
ment of tlie Constitution. 

3. That the amendment of the Constitution, 
prohibiting Slavery throughout the United 
States, will be valid, to all intents and purposes, 
as part of the Constitution, whenever ratified 
by three-fourths of the States de facto exercis- 
ing the powers and prerogatives of the United 
States under the Constitution thereof. 

4. That any otiier rule, requiring the parti- 
cipation of the rebel States, while illogical and 
unreasonable, is dangerous in its consequences, 
inasnmch as all recent Presidential proclama- 
tions, including that of emancipation, also all 



recent acts of Congress, includinct those creat- 
ing the national debt and establishing a na- 
tional currency, and also all recent treaties. 



inpliidino- tlio ti-pnfv with Great Britain for the* t'lt'ves must be apportioned accorrtnig to the actual 
including tnc lieatv wiui VTieat iMitam loi ^^^k We<-/o»-s, which would make it for the interest of a state 



extinction of the slave trade, havM been made, 
enacted, or ratified respectively •without any 
participation of the rebel States. 

5. That any other rule must tend to post- 
pone the great day when the Prohibition of 
Slavery will be valid to all intents and purposes 
as part of the Constitution of the United States ; 
but the rule herewith declared will assure the 
immediate ratification of the prohibition and 
the consummation of the national desires. 

At a subsequent day this question was dis- 
cussed collaterally, in the debate on the recog- 
nition of Louisiana, when Mr. Sumner said, 
in reply to another senator, as follows : — 

He says the vote of Louisiana is needed. 
Sir, the vote of Louisiana is not needed ; and 
when the senator makes that assertion it is in- 
terposing an obstacle to the adoption of the 
constitutional amendment. Is he a friend to 
the constitutional amendment ? Why, then, 
does he interpose an obstacle to it by foisting 
an untenable and erroneous interpretation on 
the Constitution of the United States '? The 
Constitution declares that a constitutional 
amendment shall become to all intents and pur- 
poses a part of the Constitution when it shall 
be ratified by the Legislatures of three-fourths 
of the several States ; but if no Legislatures ex- 
ist in States, is the senator going to make that 
an excuse for avoiding the establishment of that 
constitutional amendment ? Sir, I will not 
recognize the rebellion to that extent ; I will 
not recognize the independence of the' rebcsl 
States as the senator from Wisconsin does. I 
insist that these rebel States shall not control 
tlie National Government at this moment, in 
this great period of our history, and thwart the 
establishment of human freedom throughout the 
land. 

§7. 

In the Senate, Feb. 6, 1865, Mr. Sumner 
submitted the following amendment to the 
Constitution, which, on his motion, Avas re- 
ferred to the Committee of the Judiciary : — 

Amendment to the Constiution, apportioiiing 
representativeif in Congress according to the num- 
her of actual electors. 

" Representatives shall be apportioned 
among the sevei-al States which may be in- 
cludetl within this Union according to the num- 
ber of male citizen.^ of age hainng in, each State 
the t/ualificaiions requisite for electors of tlie 
most numerous branch of the State Legisla- 
ture. The actual enumeration of such citizens 
sliall be made by the census of the United 
States." 



Fn submitting this amendment, Mr. Sumner re- 
marked, that one of two alternatives was open : The 
suffrage must be secured to the new-made freedinen, 
which was the just course, or the number of represen- 
tatives must be apportioned according to the actual 



to extend the franchise. Without one of these meas- 
ures the political power of the old slave-masters would 
be enlarged by the Proclamatiou of Emancipation. 



§8. 

In the Senate, Feb. 26, 1865. While 
the resolution of the Judiciary Committee, 
recognizing the State Government of Louisi- 
ana, was under consideration, Mr. Sumner in- 
troduced the following resolutions, which, on 
his motion, jWere ordered to be printed : — 

Resolutions declarinr/ the dvt;i of the Vnitcd states 
to guarantee repiilili''-iii ijai-i Dinh iits h) tlie rcfjcl 
States, on the basis <;'' tlic I>i rtuniiinn «f Imli pcnd- 
ence ; so that the neingorerinuents sliall be fonuded 
on the consent of tlie governed, and the equality of 
all j)ersons before the law. 

1. Resolved, That it is the duty of the United 
States, at the earliest practicable moment con- 
sistent with the common defence and the gen- 
eral welfare, to re-establish by act of Congress 
republican governments in those States where 
loyal governments have been vacated by the 
existing rebellion, and thus, to tlie full extent 
of their power, fulfil the requirement of the 
Constitution, that " the United States shall 
guarantee to every State in this Union a repub- 
lican form of govQ^'ument." 

2. That this important duty is imposed by 
the Constitution, in express terms, on " the Uni- 
ted States," and not on individuals or classes 
of individuals, or on any military commander 
or executive ofiicer, and cannot be intrusted to 
any such persons, acting, it may be, for an oli- 
garchical class, and in disregard of large num- 
bers of loyal peoj)le ; but it must be performed 
by the United States, represented by the Presi- 
dent and both Houses of Congress, acting for 
the whole people thereof 

3. That, in determining the extent of this 
duty, and in the absence of any precise defini- 
tion of the term " republican form of govern- 
ment," we cannot err, if, when called to per- 
form this guaranty under the Constitution, we 
adopt the self-evident truths of the Declaration 
of Independence as an authoritative rule, and 
insist that in evd'ry re-estal)lished State the 
consent of the governed shall be the only just 
foundation of government, and all persons shall 
be ecjual before the law. 

4. That, independent of the Declaration of 
Independence, it is plain that any duty imposed 
by the Constitution must be pertbrmed in con- 
formity with justice and reason, and in the. 
light of existing facts; that therefore, in the 
performance of this guaranty, there can be 
no power under the Constitution to disfranchise 
loyal people, or to recognize any such disl'ran- 



cliisement, especially when it may hand over 
the loyal majority to the jijovernment of the 
disloyal minoi-ity ; nor can there be any power 
under the Constitution to discrnninate in favor ^, 
of the Rebellion by admitting to the electoral l|p^ 
franchise rebels who have forfeited all rights, 
and by excluding loyal persons who have never 
forfeited any right. 

5. That the Uuited States, now called at a 
crisis of histoi-y to perform this guaranty, will 
fail in duty under the Constitution, should they 
allow the re-establishment of any State with- 
out proper safeguards for the rights of all the 
citizens, and especially without making it im- 
possible for rebels now in arms against the Na- 
tional Government to trample upon the rights 
of those who are now fighting the battles of 
the Union. 

6. That the path of justice is also the path 
of peace, and that tor the sake of peace it is 
better to oliey the Constitution, and, in con- 
formity with its requirements in the perform- 
ance of the guaranty, to re-establish State 
govei'nments on the consent of the governed, 
and the equality of all persons before the law, 
to the end that the foundations thereof may be 
permanent, and that no loyal majorities may 
be again overthrown or ruled by any oligarchi- 
cal class. 

7. That a government founded on military 
power, or having its origin in military orders, 
cannot be a " republican form of government " 
according to the recjuirement of the Constitu- 
tion ; and that its recognition will be contrary 
not only to the Constitution, Jbut also to that es- 
sential principle of our Government which, in 
the language of Jefferson, establishes " the su- 
premacy of the civil over the military authority." 

8. That, in the States whose governments 
have already been vacated, a government 
founded on an oligarchical class, even if erro- 
neously recognized as a " repul)lican form of 
govei'nment " under the guaranty of the Con- 
stitution, cannot sustain itself securely Avithout 
national support ; tliat such an oligarchical 
government is not competent at this moment 
to discharge the duties and execute the powers 
of a State ; and that its recognition as a legiti- 
mate government will tend to enfeeble the 
Union, to postpone the day of reconciliation, 
and to endanger the national tranquillity. 

9. That considerations of ex|)ediency are 
in harmony with the requirements of the Con- 
stitution and the dictates of justice and reason, 
especially now, when colored soldiers have 
shown their military value ; that as their mus- 
kets are needed for the national defence against 
rebels in the field, so are their ballots yet more 
needed against the subtle enemies of the Union 
at home ; and that without their support at the 
ballot-box the cause of human rights and of the 
Union itself will be in constant peril. 

Mr. SuMNKH g.ave notice that at the proper time he 
shouUl move tliese resolutions as a substitute for the 
resolution of the Committee. But before the proper 
time the whole subject was postponed. 



§9. 

Ix THE Senate, Feb. 26, 1865. While 
the resolution for the recognition of the State 
Governraenn| of Louisiana was under con- 
sideration, Mr. Sumner moved the following 
Proviso : — 

PROyiso, that in Louisiana there shall be no denial of 
the electoral franchise or of any other rights on ac- 
count of color. 

Provided, That this shall not take effect, ex- 
cept upon the fundamental condition tltat with- 
in the Stale there shall he no denial of the 
electoral franchise or of any other rights on ac- 
count of color or race, but all persons shall be equal 
before the law. And the Legislature of the 
State, by a solemn public act, shall declare the 
assent of the State to this fundamental con- 
dition, and shall transmit to the President of 
the United States an authentic copy of such 
assent whenever the same shall be adopted, 
upon the,receii)t whereof he shall, by proclama- 
tion, announce the fact ; whereupon, without 
any further proceedings on the part of Con- 
gress, this joint resolution shall take effect. 

While this proviso was under consiileration, and be- 
fore the vote was taken, the whole subject was post- 
poned. Mr. SuMNiiK insisted in debate that it was 
according to the precedent in tlie case of Missouri, 
which was admlited into the Union only " on a certain 
condition," set forth in a Resolution of Congress. It 
was jirovided that the Legislature of the State, by a 
solemn public act, should declare its assent to what 
was called a " fundamental condition," before the ad- 
mission of the State should be ''considered complete." 
This precedent is strictly ai)plieable now. We too 
should fix a " fundamental condition" to the restora- 
tion of l^ouisiana. 



§10. 

In the Senate, March 8, 1805, Mr. 
Summer submitted the following resolution, 
which, on his motion, was ordered to be 
printed. The Senate at this time had under 
consideration the credentials of the claimants, 
as senators from Louisiana and Arkansas : — 

Resolution declaring three conditions precedent to 
the reception of senators from a rebel State. 

Resolved, That where a State has been de- 
clared to be in insurrection, no person can be 
recognized as senator from such State, or as 
claimant of a seat as senator from such State, 
until after the occurrence oi' three several condi- 
tions : first, the cessation of all armed hostility 
to the United States within the limits of such 
State; secondly, the, adoption by such State of 
a constitution of government rejjublican in form, 
and not repugnant to the Constitution and laws 
of the United States; and, thirdly, an act of 
Congress declaring that the people of such State 
are entitled to representation in the Congress of 
the United States. 



ARGUMENTS ON. RE-OEGANIZATION. 



§1. 

THE POAVER OF CONGRESS 
THE REBEL STATES. 



OYER 



[This arLTuniont appoared nri;;uially as an article in 
the Atlantic ^[,nlthl;| M'/ii/miiie Cor October, 18(53, under 
tlie title, Our Domestic Relations; or, How to treat the 
Rebel States.] 

At this moment our domestic relations all 
hinge upon one question: How to treat the Rebel 
States. No patriot citizen doubts the triumph 
of our arms in the suppression of the Rebellion. 
Early or late, this triumpli is inevitable. It may 
be by a sudden collapse of the bloody imposture, 
or it may be by a slower and more gradual sur- 
render. For ourselves, we are prepared for 
either alternative, and shall not be disappointed 
if we are constrained to wait yet a little longer ; 
but when the day of triumph comes, political 
duties will take the place of military. The 
victory won by our soldiers must be assured by 
wise counsels, so that its hard-earned fruits may 
not be lost. 

The relations of the States to the National 
Government must be carefully considered, — 
not too boldly, not too timidly, — in order to see 
in what way or by what process the transition 
from rebel forms may be most surely accom- 
])lished. If I do not greatly err. it will be found 
that the powers of Congress, which have thus 
far been so effective in raising armies and in 
supplying moneys, will be important, if not 
essential, in fixing the conditions of perpetual 
peace. But there is one point on which there 
can be no question. The dogma and delusion 
of State rights, which did so much for the Re- 
bellion, must not be allowed to neutralize all 
that our arms have gained. 

Already, in a remarkable instance, tlie Presi- 
dent has treated the pretension of State rights 
with proper indifference. Quietly and without 
much discussion, he has constituted military 
governments in the rebel States, with gov- 
ernors nominated by himself: all of which 
testifies against the old pretension. Strange 
will it be if this extraordinary power, amply 
conceded to the President, is denied to Con- 
gress. Practically the whole question with 
which I began is opened here. Therefore to 
this aspect of it I ask your first attention. 



CONGRESSIONAL GOVERNMENT VS. MILITARY 
GOVERNMENT. 

Four military governors have been already 
appointed : one for Tennessee, one for South 
Carolina, one for North Carolina, and the other 
for Louisiana. So far as is known, the ap- 
pointment of each was by a simple letter from 
the Secretary of War. But if this can be done 
in four States, where is the limit? It may be 
done in every rebel State ; and, if not in every 
other State of the Union, it will be simply be- 
cause the existence of a valid State govern- 
ment excludes the exercise of this extraordinary 
power. I>ut assuming, that, as our arms pre- 
vail, it will be done in every rebel State, we 
shall then have eleven military governors, all 
deriving their authority from one source, ruling 
a population amounting to upwards of nine mil- 
lions. And this imperatorial dominion, indefi- 
nite in extent, will also be indefinite induration ; 
for if, under tlie Constitution and laws, it be 
proper to constitute such governors, it is cigar 
that they may* be continueil without regard to 
time, — for years if you please, as well as for 
weeks ; and the whole region which they are 
called to sway will be a military empire, with 
all powers, executive, legislative, and even 
judicial, derived from one man in Washington. 
Talk of the " one-nian power ! " Here it is with 
a vengeance. Talk of military rule ! Here It 
is, in the name of a republic. 

The bare statement of this case may put us 
on our guard. We may well hesitate to organ- 
ize a single State under a military government, 
when we see wliere such a step will lead. If 
you approve one, you must approve all, and the 
National Government may crystallize Into a 
military despotism. 

In appointing. military governors of States, 
we follow an aj)proved example in certain cases 
beyond the jurisdiction of our Constitution, as 
in California and Mexico after their conquest 
and before peace. It is evident that in these 
cases there was no constraint from the Consti- 
tution, and we were perfectly free to act ac- 
cording to the assumed exigency. It may be 
proper to set up military governors for a con- 
quered country beyond our civil jurisdiction, 
and }'et it may be (questionable if we should 



10 



undertake to set up such governors in States 
which we all claim to be «rithin our civil juris- 
diction. At all events, the two cases are 
different, so that it is not easy to argue from 
one to the other. 

In Jefferson's inaugural address, where he 
develops what he calls " the essential principles 
of our government, and consequently those 
which ought to shape its administration," he 
mentions " the supremacy of the civil over the 
military authority" as one of these "essential 
principles," and then says, — 

" These should be the creed of our political 
faith, the text of civil instruction, the touch- 
stone by which to try the services of those 
we trust ; and should we wander from them in 
moments of error or alarm, let us hasten to re- 
trace our steps, and to regain the road which 
alone leads to peace, liberty, and safety." 

In undertaking to create military governors 
of States, we reverse the policy of the republic, 
as solemnly declared by Jefferson, and subject 
the civil to the military authority. If this has 
been done, in patriotic ardor, without due con- 
sideration, in a moment of error or alarm, it 
only remains, that, according to Jefferson, we 
should " hasten to retrace our steps, and to re- 
gain the road which alone leads to peace, liberty, 
and safety." 

There is nothing new under the sun, and 
the military governors whom we are beginning 
to appoint find a prototype in the Protectorate 
of Oliver Cromwell. After tlie execution' of 
the king and the establishment of the Common- 
wealth, the Protector conceived the idea of 
parcelling the kingdom into military districts, 
of which there were eleven; being precisely 
the number which it is now proposed, under the 
favor of success, to establish among us. Of 
this system, a great authority, Mr. Hallam, in 
his " Constitutional History of England," speaks 
thus : — 

" To govern according to law may sometimes be an 
usurper's wish, but can selrlom be in liis ]jo\ver. The 
Protector abandoned all thought of it. Dividing tlie 
kingdom into districts, he placed at the head of each a 
major-general, as a sort of military magistrate, re- 
sponsible for the subjection of his prefecture. These 
were eleven in number, men bitterly hostile to the 
royalist party, and insolent towards all civil au- 
thority." * 

Carlyle, in his " Life of Cromwell," gives the 
following glimpse of this military government : — 

" The beginning of a universal scheme of major -gen- 
erals; the Lord-Protector and his Council of State hav- 
ing' well considered and found it the feasiblest, — ' if 
not good, yet best.' ' It is an arbitrary government,' 
murmer many. Yes, arbitrary, but beneticial. These 
are poirers unlcnown to the English Constitution, I 
believe ; hut they are very necessary for the Puritan 
English nation at this time." f 

Perhaps no better words could be found in 
explanation of the Cromwellian policy adopted 
by our President. 

A contemporary republican, Colonel Ludlow, 

* Constitutional History of England, vol. ii. p. 340. 
t Carlyle' 8 Life of Cromwell, part ix. vol. ii. p. 168. 



whose '' Memoirs " add to our authentic histoiy 
of those interesting times, characterizes these 
military magistrates as so many " bashaws." 
Here are some of his words : — 

" The major-generals carried things with unheard-of 
insolence in their several precincts, decimating to ex- 
tremity whom they pleased, and interrupting the pro- 
ceedings at law upon petitions of those who pretended 

themselves aggrieved; tlireatening surli us iraii/il not 
yield If mil II I II siihinissionto their orders iri/Ii /nnis/inrta- 
tion to .fiiiiiiiica, or some otiier plantuiion in the West 
Indies." * 

Again, says the same contemporary writer, — 

" There were sometimes bitter reflections cast upon 
the proceedings of tlie m.ijor-generals by the lawyers 
and country gentlemen, who accused them to have done 
many things oppressive to the people, in interrupting 
the course of tlie law, and threatening such as ivould 
not submit to thetr arbitrary orders iviih transjjortation 
beyond the seas." t 

At last, even Cromwell, at the height of his 
power, found it necessary to abandon the policy 
of military governors. He authorized his son- 
in-law, Mr. Claypole, to announce in Parlia- 
ment, " that he had formerly thouglit it neces- 
sary, in respect to the condition in which the 
nation had been, that the major-generals should 
be intrusted with the authority which they had 
exercised ; but, in the present state of affairs, 
he conceived it inconsistent with the laws of 
England and liberties of the people to continue 
their power any longer." J 

The conduct of at least one of our military 
magistrates seems to have been a counterpart 
to that of these " bashaws " of Cromwell ; and 
there is no argument against that early mili- 
tary despotism which may not be urged against 
any attempt to revive it in our day. Some of 
the acts of Governor Stanley in North Carolina 
are in themselves an argument against the 
whole system. 

It is clear that these military magistrates are 
without any direct sanction in the Constitution, 
or in existing laws. They are not even "ma- 
jor-generals," or otiier military olhcers, charged 
with the duty of enforcing martial law ; but 
they are special creations of the Secretary of 
War, acting under the President, and charged 
with universal powers. As governors within 
the limits of a State, they obviously assume the 
extinction of the old State governments for 
which they are substituted, and tlie President, 
in appointing them, assumes a power over 
these States kindred to his acknowledged power 
over Territories of the Union ; but, in appoint- 
ing governors for Territories, he acts in pursu- 
ance of the Constitution and laws, by and with 
the advice and consent of the Senate. 

That the President should assume the vaca- 
tion of the State governments is of itself no 
argument against the creation of military gov- 
ernors, for it is simply the assumption of an 
unc|uestionable fact ; but if it be true that the 
State governments have ceased to exist, then 



* Ludlow's Memoirs, p. 559. 
t Ibid. p. 5S0, 



i Ibid. p. 5S2. 



11 



the way is prepared for the establishment of 
provisional governments by Congress. In short, 
if a new government is to be supplied, it should 
be supplied by Congress rather than by the 
President, and it should be according to estab- 
lished law rather than according to the mere 
will of any fuuctionary, to the end that ours 
may be a government of laws and not of 
men. 

There is no argument for military governors 
which is not equally strong for congressional 
governments, while the latter have in their 
favor two controlling considerations : first, that 
they proceed from the civil rather than the 
militai-y power; and, secondly, that they are 
created by law. Therefore, in considering 
whether congressional governments should be 
constituted, I begin the discussion by assuming 
every thing in their favor which is already ac- 
corded to the other sj'stem. I should not do 
this, if the system of military dictators were not 
now recognized, so that the question is sharply 
presented, which of the two to choose. Even 
if provisional governments by Congress are not 
constitutional, it does not follow that military 
governments, without the sanction of Congress, 
can be constitutional. But, on the other hand, 
I cannot doubt, that, if military governments 
are constitutional, then, surely, the provisional 
governments by Congress must be so also. In 
truth, there can be no opening for military gov- 
veruments which is not also an opening for 
congressional governments, with this great ad- 
vantage for the latter, that they are in harmony 
with our institutions, which favor the civil rather 
than the military power. 

In thus declaring an unhesitating preference 
for congressional governments, I am obviously 
sustained by reason ; but there is positive au- 
thority on this identical question. I refer to 
the recorded opinion of Chancellor Kent, as 
follows : — 

" Though the Constitution vests the executive 
power in the President, and declares him Com- 
mander-in-Chief of the army and navy of the 
United States, these powers must necessarily he 
subordinate to the legislative power in Congress. 
It would appear to me to be the policy or true 
construction of this simple and general grant 
of power to the President, not to suffer it to in- 
terfere with those specific powers of Congress 
which are more safely deposited in the legis- 
lative department, and that the powers thus as- 
sumed hy the President do not belong to him, but 
to Congress." * 

Such Is the weighty testimony of this illus- 
trious master with regard to the assumption of 
power by the President, in 1847, over tlie Mex- 
ican ports In our possession. It will be found 
in the latest edition of his " Commentaries " 
published during the author's life. Of course, 
it is equally applicable to the recent assump- 
tions within our own territory. His judg- 

* Kent's Commentaries, vol. 1. p. 29'2, note b. 



mcnt is clear in favor of congressional govern- 
ments. 

Of course, in ordinarj'- times, and under 
ordinary circumstances, neither system of gov- 
ernment would be valid. ''A State, in the full 
enjoyment of its; rights, would spurn a military 
governor or a congressional governor. It would 
insist that its governor should be neither mili- 
tary nor congressional, but such as its own 
people chose to elect; and nobody would ques- 
tion this right. The President does not think 
of sending a military governor to New York ; 
nor does Congress think of establishing a pro- 
visional government In that State. It is only 
with regard to the rebel States that this cjues- 
tion arises. The occasion, then, for the exer- 
cise of this extraordinary power is found in the 
Rebellion. Without the Rebellion, there Avould 
be no talk of any governor, whether military or 
conn;ressional. 



STATE RIGHTS. 

And here it becomes important to consider 
the operation of the Rebellion in opening the 
way to this question. To this end we must un- 
derstand the relations between the States and 
the National Government, under the Constitu- 
tion of the United States. As I approach this 
question of singular delicacy, let me say on the 
tin-eshold, that for all those rights of the States 
which are consistent with the peace, security, 
and permanence of the Union, according to the 
objects grandly announced in the preamble of 
the Constitution, I am the strenuous advocate, 
at all times and places. Never through any 
word or act of mine shall those rights be im- 
paired ; nor shall any of those other rights be 
called in question by which the States are held 
in harmonious relations as well with each other 
as with the Union. But while thus strenuous 
for all that justly belongs to the States, I can- 
not concede to them immunities inconsistent 
with that Constitution which is the supreme law 
of the land ; nor can I admit the impeccability ' 
of States. 

From a period even anterior to the Federal 
Constitution, there has been a perverse preten- 
sion of State Rights, which has perpetually in- 
terfered with the unity of our government. 
Throughout the Revolution, this pretension was 
a check upon the powers of Congress, whether 
in respect to its armies or its finances ; so that 
it was too often constrained to content itself 
with the language of advice or persuasion rather 
than of command. By the Declaration of In- 
dependence it.was solemnly dechired that " these 
United Colonies are, and of right ought to be, 
free and independent States ; and that, as such, 
they have full powers tO' levy war, to contract 
alliances, to establish commerce, and to do all 
other acts which independent States may of 
right do." Thus by this original charter the 
early colonies were changed into independent 



12 



States, under whose protection the liberties of 
the country were placed. 

Early steps were taken to supply the defi- 
ciencies of this gover^inient, which was effective 
only through the generous patriotism of the 
people. In July, 17 78, two years after the Dec- 
laration, Articles of Confederation were framed ; 
but they were not completely ratified by all the 
States till March, 1781. The character of this 
new government, which assumed the style of 
" The United States of America," will appear 
in the title of 4hese articles, which was as 
follows : " Articles of Confederation and 
Perpetual Union between the States of New 
Hampshire, Massachusetts Bay, Rhode-Island 
and Providence Plantations, Connecticut, New 
York, New Jersey, Pennsylvania, Delaware, 
Maryland, Virginia, North Carolina, South 
Carolina, and Georgia." By the second article, 
it was declared that " each State retains its soi;- 
ereignti/, freedom, and independence, and every 
power, jurisdiction, and right which is not by 
this Confederation expressly delegated to the 
United States in Congress assembled." By 
the third article it was further declared, that 
" the said States hereby severally enter into a 
Jirni league of fi-iendship with each other, for 
their common defence, the security of their 
liberties, and their mutual and general wel- 
fare." By another article, a " committee of 
the States, or any nine of them," was author- 
ized, in the recess, to execute the powers of 
Congress. The government thus constituted 
was a compact between sovereign States, or, 
according to its precise language, " a finn 
league of friendship " between these States, 
administered, in the recess of Congress, by a 
" committee of the States." Thus did State 
rights triumph. 

But its imbecility, from this pretension, soon 
became apparent. As early as December, 
1782, a committee of Congress made an elab- 
orate report on the refusal of Rhode Island, 
one of the States, to confer certain powers on 
Congress, with regard to revenue and com- 
merce. In April, 1783, an address of Congress 
to the States was put forth, appealing to their 
justice and plighted faith, and representing the 
consecpience of a failure on their part to sustain 
the Government and provide for its wants. In 
April, 1784, a similar appeal was made to what 
were called " the several States," whose legis- 
latures were recommended to vest " the United 
States, in Congress assembled," with certain 
powers. In July, 1785, a committee of Con- 
gress made another elaborate report on the 
reason Avhy the States should confer upon 
Congress powers therein enumerated, in the 
course of which it was urged, that, " unless 
the States act together, there is no plan of 
policy into which they can separately enter 
which they will not be separately interested to 
defeat, and, of course, all their measures must 
prove vain and abortive." In February and 
March, 178G, there were two other reports of 



committees of Congress, exhibiting the failure 
of the States to comply with the requisitions of 
Congress, and the necessity for a complete 
accession of all the Slates to the revenue sys- 
tem. In October, 1786, there was still another 
rejjort, most earnestly renewing the former 
appeals to the States. Nothing could be more 
urgent. 

As early as July, 1782, even before the first 
report to Congress, resolutions were adopted 
by the State of New York, declaring " that the 
situation of these States is in a peculiar manner 
critical ; " and " that the radical source of most 
of our embarrassments is the want of sufficient 
power in Congress to effectuate that ready and 
perfect co-operation of the different Stales on 
which their immediate safety and future happi- 
ness depend." Finally, in September, 1786, at 
Annapolis, commissioners from several States, 
after declaring " the situation of the United 
States delicate and critical, calling for an exer- 
tion of the united virtue and wisdom of all the 
members of the Confederacy," recommended j 
the meeting of a convention " to devise such 
further provision as shall appear necessary to 
render the Constitution of the Federal Gov- 
ernment ade(|uate to the exigencies of the 
Union." In pursuance of this recommendation, 
the Congress of the Confederation proposed a 
convention " tor the purpose of revising the 
Articles of Confederation and Perpetual Union 
between the United States of America, and re- 
porting such alterations and amendments of 
the said Articles of Confederation as the repre- 
sentatives met in such convention shall judge 
proper and necessaiy to render them adecjuate 
to the preservation and su])port of the Union." 

In ])ursuance of the call, delegates to the 
proposed convention were duly a])pointed by 
the legislatures of the several States, and the 
convention assembled at Philadelphia, in May, 
1787. The present Constitution was the well- 
rijiened ii'uit of their deliberations. In trans- 
mitting it to Congress, General Washington, , 
who was the President of the convention, in a V 
letter bearing date Sept. 17, 1787, made use 
of this instructive language : — ! 

" It is obviously impracticable in the Federal Govern- 
ment of these States to secure all rights of independent 
soi-ereiynty to each, and yet provide for the interest and 
safety of all. Individuals eutiring into society must 
give up a share of liberty to preserve the rest. The 
magnitude of the sacrifice must dejiend as well on situ- 
ation and circumstance as on the object to be obtained. 
It is at all times difficult to draw with precision the 
line between those rights which must be surrendered 
and those which may be reserved; and on tlie jnesent 
occasion this difficulty will be increased by a dillerence 
among the several .s^o^cs as to their situation, extent, 
habits, and particuhir interests. In all our delibera- 
tions, we kept steadily in view that which appears to us 
the greatest interest of every true American, — tuk 
coxsoLif)ATioN OF OUK Umc)x, — in whicli is involved 
our prosperity, safety, pe-rhaps our national existence. 
" Geokge Washington." 

These famous words were in harmony with 
the constant sentiments of Washington. Here 
is another instance from a letter to John Jay 
during the summer of 1787 : — 



13 



" We have errors to correct. We have probably h«d 
too good an opinion of liuman nature in forming our 
confederation. Experience lias taught us that men will 
not adopt and carry into execution measures the best 
calculated for their own good loithout the intervention 
of cocrcire ponder. I do not conceive we can exist long 
as a nation witliont lodging somewhere a power which 
will pervnde the vvlmle I'nion in as iiierr/ctir ii manner 
as th:' (tutluiritii of the State governments extends over 
the several States." 

There are the words of Washington ; and 
be then proceeds : — 

" To be fearful of investing Congress, constituted 
as that body is, with ample authority for national 
purposes, appears to me the very climax of popul.ir 
absurdity and madness." 

The Constitution was duly transmitted b}' 
Congress to the several legislatures, by which 
it was submitted to conventions of delegates 
" chosen in each State by the people thereof," 
■who ratified the same. Afterwards, Congress, 
by resolution, dated Sept. 13, 1788, setting 
forth that the convention had reported " a 
Constitution for the people of the United States," 
which had been duly ratified, proceeded to 
authorize the necessary elections under the 
new government. 

The Constitution, it will be seen, was framed 
in order to remove the difficulties arising irom 
State Rights. So paramount was this pui-pose, 
that, according to the letter of Washington, it 
was kept steadily in view in all the defibera- 
tions of the Convention, which did not hesitate 
to declare the consolidation of our Union as 
essential to our prosperity, safety, and perhaps 
our national existence. 

The unity of the Government was expressed 
in tlie term "Constitution," insteadof" Articles 
of Confederation between the States," and in 
the idea of "a more perfect union," instead of 
a " league of friendship." It was also an- 
nounced emphatically in the Preamble : — 

" If'e, the people of the Ignited States, in order to form 
a more perfect uniioi, estahlish justice, insure domestic 
tranquillity, provide for the common defence, promote 
the general welfare, and secure the blessings of libeity 
to ourselves and our posterity, do ordain and establish 
this Constitution for the United States of America." 

Not " we, the States," but " we, the people 
of the United States." Such is the beginning 
and origin of our Constitution. Here is no 
compact or league between States, involving 
the recognition of State rights ; but a govern- 
ment ordained and established by the people of 
the United States for themselves and their pos- 
terity. This government is not established hi/ 
the States, nor is it established for the States ; 
but it is established hij the people, for themselves 
and their posterity. It is true, that, in the or- 
ganization of the Government, the existence of 
the States is recoginzed, and the original name 
of " United States " is preserved ; but the sov- 
ereignty of tlie States is absorbed in that more 
perfect union which was then established. 
There is but one sovereignty recognized, and 
this is the sovereignty of the United States. 
To the several States is left that special local 
control which is essential to the convenience 



and business of life ; while to the United States, 
as a Plural Unit, is allotted that commanding 
sovereignty which embraces and holds the 
whole country within its perpetual and irre- 
versible jurisdiction. 

This obvious character of the Constitution 
did not pass unobserved at the time of its adop- 
tion. Indeed, the Constitution was most stren- 
uously opposed, on the ground that the States 
were absorbed in the nation. Patrick Henry 
protested against consolidated power. In the 
debates of the Virginia Convention, he ex- 
claimed, — 

'• And here I would make this inquiry of those 
worthy characters who composed a part of the late 
Federal Convention. I am sure tliey were fully im- 
pressed with tlie necessity of forming a great consoli- 
dated government, instead of a contederation. That 
this is a consolidated government is demonstrably clear ; 
and the danger of such a government is to my mind 
very striking. I have the highest veneration tor those 
gentlemen ; but sir, give me leave to demand, What 
right had they to say, ' JVe, the people ' ? Wlio au- 
thorized them to speak the language of ' We, thepeople,' 
instead of ' ^Fe, the States ' ? " * 

And again, at another stage of the debate, 
the same patriotic opponent of the Constitution 
declared succinctly, — 

"The question turns, sir, on that poor little thing, 
the expression, ' We the peojHe, ' instead of the States 
of America." f 

In the same convention another patriotic 
opponent of the Constitution, George Mason, 
following Patrick Henry, said, — 

" Whether the Constitutiou is good or bad, the pres- 
ent clause clearly discovers that it is a National Gov- 
ernment, and no longer a Confederation. " X 

But against all this opposition, and in face of 
this exposure, the Constitution was adopted, in 
the name of the people of the United States. 
Much, indeed, was left to the States ; but it 
was no longer in their name that the Govern- 
ment was organized, while the miserable pre- 
tension of State " sovereignty " was discarded. 
Even in the discussions of the Federal Conven- 
tion, Mr. Madison spoke thus plainly : — 

"Some contend that States are soi'ereign, when, in 
fact, they are only political societies. The States never 
possessed the esseptial rights of sovereignty. These 
were always vestea in Congress." 

Grave words, especially when we consider 
the position of their author. They were sub- 
stantially echoed by Elbridge Gerry of Massa- 
chusetts, afterwards Vice-President, who said, — 

" It appears to me that the States never were inde- 
pendent. Tliey had oidy corporate rights." 

Even Pinckney of South Carolina said, — 

" I hold it for fundamental point, that an individ- 
ual independence of the Slates is utterly irreconcilable 
with the idea of an aggregate sovereignty." $ 

Better words still fell from ]\Ir. Wilson of 
Pennsylvania, known afterwards as a learned 
jud<re of the Supreme Court, and also for his 
" J..ectures on Law : " — 

* Elliot's Debates, vol. i. p. 22. 
t Elliott's Debates, vol. iii. p. 44. 
1 Jbid. p. 29. 
5 Madison Papers, p. 631. 



14 



" Will a regard to State rights justify the sacrifice of 
the rights of men i If we proceed on any other foun- 
dation tlian the last, our building will neither be solid 
nor lasting. " 

The argument was unanswerable then. It is 
unanswerable now. Do not elevate the sover- 
eignty of the States against the Constitution 
of the United States. It is hardly less odious 
than the earl}- pretension of sovereign power 
against Magna Charta, according to the memo- 
rable words of Lord Coke, as recorded by Eush- 
worth : — 

" Sovereign power is no parliamentry word. In my 
opinion, it weakens Magna Charta and all our statutes ; 
for they are absolute w ithout any saving of sovereign 
power. And shall we now add it, we shall weaken the 
foundation of law, and then the building must needs 
fall. Take we heed what we yield unto. Magna CJ^ar- 
ta is such a fellow that he will have no sovereign. " * 

But the Constitution is our Magna Charta, 
which can bear no sovereign but itself, as you 
wiU see at once, if you will consider its charac- 
ter. And this practical truth was recognized 
at its formation, as may be seen in the writings 
of our Rushworth, — I refer to Nathan Dane, 
who was a member of Congress under the Con- 
federation. He tells us plainly, that the terms 
" sovereign States, " " State sovereignty, " 
" State rights, " " rights of States, " are not 
" constitutional expressions." 



POWERS OF CONGRESS. 

In the exercise of its sovereignty. Congress 
is intrusted with large and peculiar powers. 
Take notice of them, and you will see how 
little of "sovereignty" is left to the States. 
Their simple enumeration is an argument 
against the pretension of State rights. Con- 
gress may lay and collect taxes, duties, imposts, 
and excises to pay the debts and provide for 
the common defence and general u-efare of the 
United States. It may borrow money on the 
credit of the United States ; regulate commerce 
with foreign nations, and among the several 
Spates, and with the Indian tribes; establish a 
uniform rule of naturalization, and uniform 
laws on the subject of bankriT^tcy, throughout 
the United .States: coin money, regulate the 
value thereof, and fix the standard of weights 
and measures ; establish post-offices and post- 
roads •, promote the progress of science and the 
useful arts by securing for limited times, to au- 
thors and inventors, the exclusive right to their 
respective writings and discoveries ; define and 
punish piracies and felonies committed on the 
high seas, and oflfences .qgainst the law of na- 
tions ; declare war ; grant letters of marque 
and reprisal ; make rules concerning captures 
on land and water ; raise and support armies ; 
provide and maintain a navy ; make rules for 
the government and regulation of the land and 
naval forces ; provide for calling forth the mi- 
litia to execute the laws of the Union, to sup- 
press insurrections, and repel invasions; pro- 

* Rushworth's Historical Collections, vol. i. p. 009. 



vide for organizing, arming, and disciplining the 
militia, and for governing such part of them as 
may be employed in the service of the United 
States, reserving to the States respectively the 
appointment of officers, and the authority of 
training the militia according to the discipline 
prescribed hy Congress ; and make all laws ne- 
cessary and proper for carrying into execution 
the foregoing powers and all other powers vest- 
ed in the Government of the United States. 

Such are the ample and diversified powers 
of Congress, embracing all those powers which 
enter into sovereignty. With the concession 
of these to the United States, there seems to 
be little left for the several States. In the pow- 
er to " declare war " and to " raise and support 
armies," Congress possesses an exclusive pow- 
er, in itself immense and infinite, over persons 
and property in the several States, while, by 
the power to " regulate commerce," it may put 
limits around about the business of the several 
States ; and even in the case of the militia, 
which is the original military organization of 
the people, nothing is left to the States except 
" the appointment of the officers," and the au- 
thority to train it " according to the discipline 
prescribed by Congress." It is thus that these 
great agencies are all intrusted to the United 
States, while the several States are subordinat- 
ed to their exercise. 

Constantly, and in every thing, we behold 
the constitutional subordination of the States. 
But there are other provisions by which the 
States are expressly deprived of important ) 
powers. For instance : " No State shall enter A 
into any treaty, alliance, or confederation ; coin j 
money ; emit bills of credit ; make any thing ! 
but gold and silver coin a tender in payment 
of debts." Or, if the States may e.xercise cer- 
tain powers, it is only with the consent of Con- 
gress. For instance : " No State i\\&\\,without the 
consent of Congress, lay any duty of tonnage, 
keep troops or ships of war in time of peace, 
enter into any agreement or compact with 
another State or with a foreign power." Here 
is a magistral power accorded to Congress ut- 
terly inconsistent with the pretensions of State 
rights. Then, again : " No State shall, ivithout 
'the consent of Congress, lay any imposts or 
duties on imports or exports, except what may j 
be absolutely necessar}-^ for executing its in- I 
spection-laws ; and the net produce of all du- i 
ties and imposts laid by any State on imports 
or exports shall be for the use of the treasury 
of the United States ; and all such laws shall 
he subject to the revision and control of the Con- 
gress." Here, again, is a similar magistral 
power accorded to Congress ; and, as if still 
further to deprive the States of their much 
vaunted sovereignty, the laws which they make 
with the consent of Congress are expressly de- 
clared to be subject " to the revision and con- 
trol of the Congress." But there is another j 
instance still. According to the Constitution, | 
" Full faith and credit shall be given in each ] 



15 



State to the public acts, records, and judicial 
proceedings of every other State ; " but here 
mark the controlling power of Congress, which 
is authorized to " prescribe the manner in 
which such acts, records, and proceedings shall 
be proved, and the elFect thereof." 



SUPREMACY OF THE NATIONAL GOVERN- 
MENT. 

But there are five other provisions of the 
Constitution by which its supremacy is posi- 
tively established. 1. "The citizens of each 
State shall be entitled to all privileges and im- 
munities of citizens in the several States." As 
Congress has the exclusive power to establish 
"an uniform rule of naturalization," it may, 
under these words of the Constitution, secure 
for its newly entitled citizens " all privileges 
and immunities of citizens in the several 
States," in defiance of State rights. 2. "New 
States may be admitted h)j the Congress into 
this Union." According to these words, the 
States cannot even determine their associates, 
but are dependent in this respect upon the will 
of Congress. 3. But, not content with taking 
from the States these important powers of sove- 
reignty, it is solemnly declared that the Con- 
stitution, and the laws of the United States 
made in pursuance thereof, and all ti-eaties un- 
der the authority of the United States, "SHALL 

BE THE SUPREME LAW OF THE LAND, any 

thing in the Constitution or laws of any State to 
the contrary notwithstanding." Thus are State 
rights again subordinated to the National Con- 
stitution, which is erected into the paramount 
authority. 4. But this is done again by another 
provision, which declares that " the members 
of the several State legislatures, and all execu- 
tive and judicial officers of the several States, 
shall be bound by oath or affirmation to sup- 
port this Constitution : " so that not only State 
laws are subordinated to the National Consti- 
tution, but the makers of State laws, and all 
other State officers, are constrained to declare 
their allegiance to this Constitution ; thus pla- 
cing the State, alike through its acts and its 
agents, in complete subordination to the sove- 
reignty of the United States. 5. But this 
sovereignty is further proclaimed in the sol- 
emn injunction, that " the United States shall 
guarantee to every State in this Union a re- 
publican form of government, and shall protect 
each of them against invasion." Here are du- 
ties of guaranty and protection imposed upon 
the United States, by which their position is 
fixed as the supreme^ power. There can be 
no such guaranty without the implied I'ight to 
examine and consider the governments of the 
several States ; and there can be no such pro- 
tection without a similar right to examine and 
consider the condition of the several States ; 
thus subjecting them to the rightful supervision 



and superintendence of the National Govern- 
ment. 

Thus, whether we regard the large powers 
vested in Congress, the powers denied to the 
States absolutely, the powers denied to the 
States without the consent of Congress, or 
those other provisions which accord supremacy 
to the United States, we shall find the preten- 
sion of State sovereignty without foundation, 
except in the imagination of its partisans. Be- 
fore the Constitution, such sovereignty may have 
existed : it was declared in the Articles of Con- 
federation ; but since then it has ceased to ex- 
ist. It has disappeared and been lost in the 
supremacy of the National Government, so 
that it can no longer be recognized. Perverse 
men, insisting that it still existed, and weak 
men, mistaking the shadow of former power for 
the reality, have made arrogant claims in its 
behalf When the Constitution was proclaimed, 
and George Washington took his oath to sup- 
port it as president, our career as a nation be- 
gan with all the unity of a nation. The States 
remained as living parts of the body, important 
to the national strength, and essential to those 
currents which maintain national life, but 
plainly subordinate to the United States, which 
then and there stood forth a nation, ^ne and 
indivisible. 



MISCHIEFS IN THE NAME OF STATE RIGHTS. 

But the new government had hardly been 
inaugurated before it was disturbed by the 
pestilent pretension of State rights, which, in- 
deed, has never ceased to disturb it since. Dis- 
content with the treaty between the United 
States and Great Britain, negotiated by that 
purest patriot, John Jay, under instructions 
from Washington, in 1794, aroused Virginia, 
even at that early day, to commence an oppo- 
sition to its ratification, in the name of State 
rights. Shortly afterwards appeared the fa- 
mous resolutions of Virginia and those of K^- 
tucky, usually known as the " Resolutions of 
'98," declaring that the National Government 
was founded on a compact between the States, 
and claiming for the States the right to sit in 
judgment on the National Government, and to 
interpose, if they thought fit : all this, as you 
will see, in the name of State rights. This pre- 
tension on the part of the States increased, till, 
at last, on the mild proposition to attach a pros- 
pective prohibition of Slavery as a condition to 
the admission of Missouri into the Union as a 
new State, the opposition raged furiously, even 
to the extent of menacing the existence of the 
Union ; and this, too, was done in the name of 
State rights. Ten years later, the pretension 
took the familiar form of nullification, insisting 
that our government was only a compact of 
States, any one of which was free to annul an 
act of Congress at its own pleasure; and all 
this in the name of State rights. For a succes- 



16 



sion of years afterwards, at the presentation of 
petitions against slavery, petitions for the 
recognition of Hayti, at the question of Tex- 
as, at the AVilmot Proviso, at the admission 
of California as a fi'ee State, at the discus- 
sion of the Compromises of 1850, at the Kan- 
sas question, the Union was menaced ; and al- 
ways in the name of Stale rlyhts. The menace 
was constant; and it sometimes showed itself on 
small as well as great occasions, but always in 
the name of Slate rights. When it was sup- 
posed that Fremont was about to be chosen 
President, the menace became louder, and 
mingling with it was the hoarse mutter of 
war ; and all this audacity was in the name of 
Stale rights. 

But in the autumn of 18G0, on the election 
of Mr. Lincoln, the case became much worse. 
Scarcely was the result of this election known 
by telegraph, before the country was startled 
by other intelligence, to the effect that certain 
States at the South were about to put in ex- 
ecution the long-pending threat of secession, 
of course in the name of State rights. First 
came South Carolina, which, by an ordinflnce 
adopted in a State convention, undertook to re- 
peal the original act by which the Constitution 
was adored in this State, and to declare that 
the State had ceased to be one of the States of 
the Union. At the same time, a Declaration of 
Independence was put forth by this State, 
which proceeded to organize itself as an inde- 
pendent community. This example was fol- 
lowed successively by other States, which, by 
formal acts of secession, undertook to dissolve 
their relations with the Union, always, be it 
understood, in the name of State rights. A 
new confederation was formed by these States, 
with a new constitution, and Jefferson Davis 
at its head ; and the same oaths of loyalty by 
which the local functionaries of all these States 
had been bound to the Union Avere now trans- 
ferred to this new confederation, — of course, 
in utter violation of the Constitution of the 
United States, — but always in the name of State 
rights. The ordinances of secession were 
next maintained by war, which, beginning with 
the assault upon Fort Sumter, convulsed the 
whole country, till, at last, all the States of the 
new confederation are in open rebellion, 
which the Government of the United States is 
now exerting its energies, mustering its forces, 
and taxing its people, to suppress. The origi- 
nal claim, in the name of Slate rights, has 
swollen to all the proportions of an unparal- 
leled war, which, in the name of Slate rights, 
now menaces the national life. 

But the pretensions in the name of State 
rights are not all told. While the ordinances 
of secession were maturing, and before they 
were yet consummated, Mr. Buchanan, who 
was then President, declined to interfere, on 
the ground that what had been done was done 
by States, and that it was contrary to the the- 
ory of our government " to coerce a State." 



Thus was the pretension of Slate rights made 
the apology for imbecility. Had this President 
then intertered promptly and loyally, it cannot 
be doubted that this whole intolerable cri^ie 
might have been trampled out forever ; and 
now, when it is proposed that Congress shall 
organize governments in these States, which are 
absolutely without loyal governments, we are 
met by the objection founded on State rights. 
The same disastrous voice, which from the be- 
ginning of our history has sounded in our ears, 
still makes itself heard ; but, alas ! it is now on 
the lips of our friends. Of course, just in pro- 
portion as it prevails will it be impossible to es- 
tablish the Constitution again throughout the 
rebel States. State rights are madly trium- 
phant, if, first, in their name Rebel Govern- 
ments can be organized, and then, again, in 
their name congressional governments to dis- 
place the rebel governments can be resisted. 
If they can be employed, first to sever the 
States from the Union, and then to prevent the 
Union from extending its power over them. 
State rights are at once a sword and buckler 
to the Rebellion. It was through the imbecili- 
ty of Mr. Buchanan that the States were al- 
lowed to use the sword. God forbid that now, 
through any similar imbecility of Congress, they 
shall be allowed to use the buckler ! 



SHALL CONGRESS ASSUME .JURISDICTION OF 
THE REBEL STATES ? 

And now, in this discussion, we are brought 
to the practical (Question which is destined to 
occupy so much of public attention. It is pro- 
posed to bring the action of Congress to bear 
directly upon the rebel States. This may be 
by the establishment of provisional governments 
under the authority of Congress, or simply by 
making the admission or recognition of the 
States depend upon the action of Congress. 
The essential feature of this proposition is, that 
Congress shall assume jurisdiction of the rebel 
States. A bill authorizing provisional govern- 
ments in these States was introduced into the 
Senate by Mr. Plarris of the State of New York, 
and was afterwards reported from the Judiciary- 
Committee of that body ; but it was left with the 
unfinished business, when the late Congress ex- 
pired on the fourth of March. The ojiposition 
to this proposition, so far as I understand it, as- 
sumes two forms : first, that these States are 
always to be regarded as States, with State 
rights, and therefore cannot be governed by 
Congress ; and, secondly, that, if any govern- 
ment is to be established over them, it must be 
simply a military government, with a military 
governor, appointed by the President, as is ihe 
case with Tennessee and North Carolina. But 
State rights are as much disturbed by a military 
government as by a congressional government. 
The local government is as mu(,-h set aside in. 
one case as in the other. If the President, 



n 



within State limits, can proceod to organize a 
military government to exercise all the powers 
of the State, surely Congress can proeeed to 
organize a eivil government witjiin the same 
limits tor the same purpose ; nor ean any pre- 
tension of State rights be eft'eetive against 
Congress more than against the President. In- 
deed, the power belongs to Congress by a higher 
title than it belongs to the President; first, be- 
cause a eivil government is more in harmony 
with our institutions, and, wherever possible, is 
required; and, secondly, because there arc 
provisions of the Constitution under which this 
power is clearly derived. 

Assuming, then, that the pretension of State 
rights is as valid against one form of govern- 
ment as against the other, and still further as- 
suming, that, in the case of military govern- 
ments, this pretension is practically overruled 
by the President at least, we are brought again 
to consider the efficacy of this pretension when 
advanced against Congressional governments. 

It is argued that the Acts of Secession arc 
all inoperative and void, and that therefore the 
States continue precisely as before, with their 
local constitutions, laws, and institutions in the 
hands of traitors, but totally nnchanged, and 
ready to be quickened into life by returning 
loyalty. Such, I believe, is a candid statement 
of the pretension for State rights against Con- 
gressional governments, which, it is argued, can- 
not be substituted for the State governments. 

In order to prove that the rebel States con- 
tinue precisely as before, we are reminded that 
Andrew Johnson continued to occupy his seat 
in the Senate after Tennessee had adopted its 
Act of Secession and embarked in rebellion, 
and that his presence testified to the fact that 
♦rebel Tennessee was still a State of the Union. 
No such conclusion is authorized by the inci- 
dent in question. There are two princi})Ies of 
Parliamentary law long ago fixed : first, that the 
power once conferred bj' an election to Parlia- 
ment is irrevocable, so that it is not affected by 
any subsecjuent change in the constituency ; 
and, seconclly, that a member, when once chos- 
en, is a member for the whole kingdom, becoming 
thereby, according to the words of an early 
authoi", not merely knight or burgess of the 
county or borough which elected him, but 
knight or burgess of England.* If these two 
principles are not entirely inapplicable to our 
political system, then the seat of Andrew John- 
son was not in any respect affected by the 
sulisetjuent madness of his State, nor can the 
legality of his seat be any argument for his 
State. 

We arc also reminded that during the last 
session of Congress two senators from Virginia 
represented that State in the Senate ; and the 
argument is pressed, that no such representa- 
tion would be valid, if the State government 
of Virginia was vacated : this is a mistake. 

* See Gushing, Parlimentary Law, p. 284. 
2 



Two things are established by the presence of 
these senators in the National Senate ; first, 
that the old State government of Virginia is 
extinct; and, secondly, that a new government 
has been sctr up in its place. It was mj' fortune 
to listen to one of these senators while he 
earnestly denounced the idea that a -State gov- 
ernment might disappear. I could not but 
think that he strangely forgot the principle to 
which he owed his seat in the Senate, as men 
sometimes lorget a benefactor. 

it is true beyond question, that the acts of 
secession are all inopei'ative and void 
against the Constitution of the United States. 
Though matured in successive conventions, 
sanctioned in various forms, and maintained 
ever since by bloody war, these acts — no 
matter by what name they may be called — are 
are all equally impotent to withdraw an acre 
of territory or a single inhabitant from the 
riglitful jurisdiction of the United States. But, 
while thus impotent against the United States, 
it docs not follow that they were equally impo- 
tent in the work of self-destruction. Clearly, 
the rebels, by utmost efforts, could not impair 
the National Jurisdiction ; but it remains to 
be seen if their enmity did not act back with 
fatal rebound upon those very State rights in 
behalf ot which they commenced their trea- 
son. 

STATE SUICIDE. 

It Is sometimes said that the States them- 
selves committed suicide; so that, as States, 
they ceased to exist, leaving their whole ju- 
risdiction open to the occupation of the 
United States under the Constitution. This 
assumption Is founded on the fact, that, what- 
ever may be the existing governments in 
these States, they are in no respect constitu- 
tional ; and since the State itself is known by 
the government with which its life Is Inter- 
twined, it must cease to exist constitutionally 
when its government no longer exists consti- 
tutionally. Perhaps, however. It would be 
better to avoid the whole question of the life 
or death of the State, and to content our- 
selves with an Intpilry Into the condition of 
its government. It Is not easy to say what 
constitutes that entity which we call a State ; 
nor Is the discussion much advanced by any 
theory with regard to it. To my mind it 
seems a topic fit for the old schoolmen, or a 
modern debating society ; and yet, consider- 
ing the part it has already played in this dis- 
cussion, I shall be pardoned for a brief allu- 
sion to It. 

There are well-known words which ask and 
answer the question. " What constitutes a 
State ? " But the scholarly poet was not 
thinking of a " State " of the American Un- 
ion. Indeed, this term Is various in its use. 
Sometimes It stands for civil society itself. 
Sometimes it is the general name for a politi- 
cal community, not unlike " nation," or 



18 



" country," — as where our fathers, in the 
resolution of Independen -e, which pre-eded 
the Declaration, spoke of " the Stale of Great 
Britain." Sometimes it stands for the Gov- 
ernment, — as when Louis XIV., at the 
height of his power, exclaimed, '• The State, 
it is I ! V or when Sir Christopher Halton, in 
the famous farce of " The Critic," ejacu- 
lates, — 

" Oh ! pardon me if my conjecture's rash ; 
But I surmise — the State — 
Some danger apprehends." 

Among us the term is most known as the 
technical name for one of the political socie- 
ties wliich compose our Union. Of course, 
when used in the latter restricted sense, it 
must not be confounded with the same term 
when used in a diifereut and broader sense. 
But it is obvious that some persons attribute 
to the one something of the qualities which can 
belong only to the other. Nobody has sug- 
gested, I presume, that any " State " of our 
Union has, through reljellion, ceased to exist 
as a cinil society, or even as a polifical commu- 
nity. It is only as a State of the Union, arnn^d 
with State rights, or at least as a local gov- 
ernment, which annually renews itself, as the 
snake its skin, that it can be called in ques- 
tion. But it is vain to challenge lor the 
technical " State," or for the Annual Govern- 
ment, that immortality which belongs to civil 
society. The one is an artificial body, the 
other is a natural body ; and while the first, 
overwhelmed by insurrection or war, may 
change or die, the latter can change or die 
only with the extinction of the commituity 
itself whatever may be its name or its form. 

It is bec^ause of confusion in the use of this 
term that there has been so much confusion in 
the political controversies where it has been 
employed. But nowhere has this confusion 
led to greater absurdity than in the pretension 
which has been recently made in the name of 
State rights, — as if it were reasonable to 
attribute to a technical '' State " of the Union 
that immortality that belongs to civil society. 

From approved authorities it appears that 
a " State," even in a broader signification, 
may lose its life. Mr. Phillimore, in his re- 
cent work on international law, says, " A 
State, like an individual, may die," and among 
the various ways, he says, " by its submission 
and the donation of itself to another coun- 
try." * But in the case of our rebel States 
there has been a plain submission and dona- 
tion of themselves, effective at least, to break 
the continuity of government, if not to destroy 
that immortality which has been claimed. 
Nor can it make any difl^erence in breaking 
this continuity, that the submission and dona- 
tion, constituting a species of attornment, 
were to enemies at home rather than to ene- 
mies abroad, — to Jefferson Davis rather than 

* I'hillimore's International Law, vol. i. p. 147. 



to Louis Napoleon. The thread is snapped in 
one case as much as in the other. 

But a change of f.rvi in the actual govern- 
ment may be equally effective. Cicero speaks 
of a change so complete as " to leave no im- 
age of a State behind." But this is precisely 
what has been done throughout the whole 
rebel region : there is no image of a consiiJu- 
tional State left behind. Another authority, 
Aristotle, whose words are always weiglity, 
sHys, that, the form of the State being changed, 
the State is no longer the same, as the harmony 
is not the same when we modulate out of the 
Dorian mood into the Phrygian. But, if ever 
an unlucky people modulated out of one 
mood into another, it was our rebels, when 
they undertook to modulate out of the har- 
monies of the Constitution into their bloody 
discords. 

Without stopping further for these diver- 
sions, I content myself with the testimony of 
Edmund Burke, who, in a striking passage, 
which seems to have been written for us, por- 
trays the extinction of a political community ; 
but I quote his eloquent words rather for sug- 
gestion than for authority : — 

" Tn a state of rude Nature, there is no such thing as 
a people. A number of men in themselves have no 
collective capacity. The idea of people is the idea of 
a corporation, it is wholly artiticial, and made, like 
all other legal fictions, by common agreement. What 
the particular nature of that agreement was is collected 
from the form into which the particular society has 
been cast. Any other is not tlwir covenant. iVlien 
men, ilierefore, break iij) tliooi-igiiial coDipart or agree- 
ment ivliich gives its corpoidie form and capacity to a . 
State, tliey «re vo longer apeop'le; tliey liave no longer 1 
<i corporate existence ; they have no longer a legal co- ^ 
active force to bind within, nor a claim to be recog- 
nized abroad. Tliey are a number of vague, loose in- 
dividuals, and notliing more. With them all is to be- 
gin again. Alas I they little know how many a weary , 
step is to be taken before they can form themselves 
into a mass which has a true politic personality." * • 

If that great master of eloquence could be 
heard, who can doubt that he would blast our 
Rebel States, as senseless communities who 
have sacrificed that corporate existence which 
makes them living, component members of 
our Union of States ? 



STATE FORFEITUKE. 

But again, it is sometimes said that the 
States, by their flagrant treason, have forfeited 
their rights as States, so as to be civilly dead. 
It is a patent and indisputable fact, that this 
gigantic treason was inaugurated with all the 
forms of law known to the States ; that it was 
carried forward not only by individuals, but 
also by States, so far as States can perpetrate 
treason ; that the States pretended to with- 
draw bodily in their corporate capacities ; 
that the Bebellion, as it showed itself', was by 
States as well as in States ; that it was by the 
governments of States as well as by the peo- 
ple of States ; and that, to the common ob- 

*^\iLxyif:^i Appeal from tlieNcv) to ttie Old Whigs. 



19 



server, tlie crime was consummated by the 
several corporations as well as by the individ- 
uals of whom they were composed. From 
this fact, obvious to ail, it is argued, that 
since, according to Blackstone, '' a traitor hath 
abandoned his connection with society, and 
hath no longer any right to the advantages 
which belbre belonged to him purely as a 
member of the community," by the same prin- 
ciple the traitor State is no longer to be' re- 
garded as a member of the Union. But it is 
not necessary, on the present occasion, to in- 
sist on tlie application of any such principle 
to States. 

STATE ABDICATION. 

Again it is said, that the States by their 
treason and rebLdllou, levying war upon the 
National Government, have abdicated their 
places in the Union ; and here the argument 
is upheld by the historic example of England, 
at the Revolution of 1G88, when, on the flight 
of James II. and the abandonment of his 
kingly duties, the two Houses of Parliament 
voted, that the monarch, " having violated the 
flmdamental laws, and having withdrawn him- 
self out of the kingdom, hud' ahdicatcd the 
Government, and that the throne had tliereby 
become vacant." * But it is not necessary for 
us to rely on any allegation of abdication, ap- 
plicable as It may be. 

RIGHTFUL GOVERNMENT IN THE KEBEL 
STATES VACATED. 

It only remains that we should see things a^ 
they are, and not seek to substitute theory for 
fact. On this important c[uesdon I discard all 
theoiy, whether it be of State suicide or State 
forfeiture or State abdication, on the one side, 
or of State rights, immortal and unimpeacha- 
ble, on the otlicr side. Such discussions are 
only endless mazes in which a whole Senate 
may be lost. And in discarding all theory, I 
discard also the c^uestion o{ </ejure, — whether, 
lor instance, the Rebel States, while the Re- 
bellion is flagrant, are de jure States of the 
Union, with all the rights of States. It is 
enough, that for the time being, and in the 
absence of a loj/al Government, they can take 
no part and perform no function in the Union, 
so that, thctj cannot be recognized by the National 
Government. The reason is plain. There are 
in these States no local functionaries bound by 
constitutional oaths, so that, in fact, there are 
no constitutional functionaries ; and since the 
State Government is necessarily composed of 
such functionaries, there can be no State Gov- 
ernment. Thus, for instance, in South Caro- 
lina, Pickens and his associates may call them- 
selves the governor and legislature; and in 
Virginia, Letcher and his associates may call 
themselves governor and legislature ; but we 
cannot recognize them as such. Therefore to" 
all pretensions In behalf of State Govern- 

* Macaulay's History of England, vol. ii. p. 023. 



ments in the Rebel States I oppose the simple 
FACT, that for the time being no such Gov- 
ernments exist. The broad sjiaces once occu- 
pied by those Governments are now aban- 
doned and vacated. 

That patriot senator, Andrew Johnson, — 
faithful among the faithless, the Abdiel of the 
South, — began his attempt to re-orgahize Ten- 
nessee by an address, as early as the 18th of 
March, 18G2, in which he made use of these 
words : — 

" I find most, if not all, of the ofiicos, both State 
anil Federal, vacntcd, either hy actual iihinnhntmeiit, or 
tijl the action of the incumltents in (itleinpiiiiii to subor- 
dinate their functions to a power in liostiiity to the 
fundamental law of the State and subversive of her 
national allegiance." 

In employing the word " vacated," Mr. 

Johnson hit upon the very term, which, in the 

famous Resolution of 1688, was held to be 

most effective in dethroning King James. 

After declaring that he had abdicated the 

government, it was added, " that the throne 

had thereby become vacant ; " on which Ma- 

caulay happily remarks : — 

" The word abdication conciliated politicians of a 
more timid scliool. To tlie real statesman the simple 
important clause was that ivhidi declared the throne 
vacant; and if that clause could be carried, he cared 
little by what preamble it might be introduced." * 

And the same simple principle is now in is- 
sue.' It is enough that the Rebel States be 
declared vacated, as in fact they are, by all lo- 
cal government which we ar(! bound to recog- 
nize : so that the waj' Is open to the exercise 
of a rightful jurisdiction. 

TRANSITION TO RIGHTFUL GOVERNMENT. 

And here the question occm'S, How shall 
this rightful jurisdiction be established in 
the vacated State ? Some there are, so im- 
passioned for State rights, and so anxious for 
forms, even at the expense of substance, that 
they insist upon the instant restoration of the 
old Scate governments in all their parts, 
through the agency of loyal citizens, who, 
meanwhile, must be protected in this work 
of restoration. But assuming that all this is 
practicable, as it clearly is not, it attributes to 
the loyal citizens of a Rebel State, however 
few In numbers, — it may be an insignificant 
minority, — a power clearly Inconsistent with 
the received principle of popular government, 
that the majority nmst rule. The seven voters 
of Old Sarum were allowed to return two 
members of Parliament, because this place, — 
once a Roman fort, and afterwards a sheep- 
walk, — many generations before, at the early 
casting of the House of Commons, had been 
entitled to this representation ; but the argu- 
ment for State Rights assumed that all these 
rights may be lodged in voters as few in num- 
ber as ever controlled a rotten borough of 
England.^ 

Pray, admitting that an insignificant minor- 
ity is to organize the new government, how 

* Macaulay's History of England, vol. ii. p>621. 



20 



shall it be done ? and by whom shall it be set 
in motion ? In putting these questions, I open 
the difficuhies. As the original government has 
ceased to exist, and there are none who can 
be its legal successors so as to administer the 
requisite oaths, it is not easy to see how the 
new Government can be set in motion with- 
out a reso' t to some revohitionary proceeding, 
instituted either by the citizens or by the mil- 
itary power, — unless Congress, in the exer- 
cise of its plenary powers, should undertake 
to organize the new jurisdiction. 

But eveiy revolutionary proceeding is to be 
avoided. It will be within the recollection of 
all familiar with our history, that our fathers, 
while regulating the separation of the Colo- 
nies from the parent country, Avere careful 
that all should be done according to the foi-ms 
of law, so that the thread of lec/aiity should 
continue unbroken. To this end the Conti- 
nental Congress interfered by a suj^ervising 
direction. But the Tory argument in that 
day denied the power of Congress as ear- 
nestly as it denies this power now. IVIr. Du^ 
ane, of the Continental Congress, made him- 
self the mouthpiece of this denial : — 

" Co)ir/re.'<s ought not to (/etermine n point of this 
soj-i about instituting (iovernmei)t. What is it to Con- 
gress how justice is administeiecl ? You liave ro rij^lit 
to pass the resolution, any more than railiaraeirt has. 
How does it appear that no favorable answer is likely 
to be given to our petitions ? " * 

In spite of this argument, the Congress of 
that day undertook, by formal resolutions, to 
indicate the process by which the new Gov- 
ernments should be constituted.f 

If we seek for our guidance the principle 
which entered into this proceeding of the Con- 
tinental Congress, we shall find it in the idea, 
that nothing must be left to illegal or informal 
action, but that all must be done according to 
rules of constitution and law previously or- 
dained. Perhaps this principle has never been 
more distinctly or jiowcrfuUy enunciated than 
by Mr. Webster, in his speech against the Dorr 
Constitution in Rhode Island. According to 
him, this principle is a fundamental part of 
what he calls our American system, requiring 
that the right of suffrage shall be prescribed 
hy previous law, including its qualifications, the 
time and place of its exercise, and the manner 
of its exercise ; and then, again, that the results 
are to be certified to the central power by some 
certain rule, b;/ some known public officers, in 
some clear and definite form, to the end that 
two things may be done : first, that every man 
entitled to vote may vote ; secondly, that his 
vote may be sent forward and counted, and so 
he may exercise his part of sovereignty, in com- 
mon with his fellow-citizens. Such, according 
to Mr. Webster, are the minute forms which 
must be followed, if we would impart to the 
result the crowning character of law. And 
here are other positive words from him on this 
important point : — 

* John Adams's Works, vol. ii. p. 490. 
t Ibid. vol. iii. pp. 17, 19. 45, 40. 



" We are not to take the will of the people from pub- 
lic meetings, nor lioni tumultuous assemblies, by which 
the timid are terrilied, tlie prurient are alarmed, and 
by whicli society is disturbed. These are not Ameri- 
can modes of signifyinj^- the will of the people, and 
they never were. . . . 

" Is it not obvious enough, that men cannot get to- 
gether and count themselves, and say they are so njany 
hundreds and so many tliousands, and judge of their 
own qualifications, and call themselves the people, and 
set up a government ? Why, nnnther set of men, fort;/ 
miles o//; on tin' sunn' da;/, with the smne propriety, tcit'h 
as good quniifirniiniis, mil/ ill as large numbers, may 
meet, and si't ii/i iniii/liir i/iirirnmevt. . . . 

" When, in tlie course of linman events, it becomes 
necessary to ascertain tlie will of tlie people on a new 
exigency, or a new state of tilings or of opinion, the 
legislative power pror ides for that ascertainment by an 
ordinary act of legislation. 

" What do I contend for? I say that the will of the 
people must prevail, when it is ascertained ; but there 
must be some legal and authentic mode of asC'rtuintng 
that will, and then tlie people may make what govern- 
ment they please. . . . 

"All that is necessary here is that the will of the 
people should be ascertained by some regular rule of 
pvoceedings, ])Tescribed by j^revious lair. . . . 

" But the law and tlie Constitution, the whole system 
of American institutiots, do not contemplate a case in 
whicli a resort will be necessary to proceeding's aliunde, 
or outside of the law and the Constitution, for the pur- 
pose of amending the frame of government."* 

CONGRESS THE TRUE AGENT. 

But, happily, we ar» not constrained to any 
such revolutionary proceeding. The new gov- 
ernments can all be organized by Congress, 
which is the natural guardian of the people, 
without any immeiliate government, and within 
the jurisdiction of the Constitution of the United ,: 
States. Indeed, Avith the State governments i 
already vacated by rebellion, the Constitution 
becomes, for the time, the supreme and only 
law, binding alike on President and Congress, i 
so that neitlier can establish any law or institu- i 
tion incompatible with it ; and tiie whole reb- ' 
el region, deprived of . all local government,* 
lapses under the exclusive jurisdiction of Con- 
gress, precisely as any other territory ; or, in 
other words, the lifting of the local govern- 
ment leaves the whole vast region without any 
other government than Congress, unless the 
President should undertake to govern it by mili- 
tary power. Startling as this proposition may 
seem, especially to all who believe that "there 
is a divinity that doth hedge" a State hardly 
less than a king, it will appear, on careful con- 
sideration, to be as well founded in the Constitu- 
tion as it is simple and natural, while it affords 
an easy and constitutional solution to our pres- 
ent embarrassments. 

I have no theory to maintain, but only the 
truth ; and, in presenting this argument for 
Congressional government, I simply follow 
teachings which I cannot control. The wis- 
dom of Socrates, in the words of Plato, has apt- 
ly described these teachings, when he says, — 

" These things are secured and bound, even if the ex- 
pression be somewhat too rude, with iron and adamant ; 
and unless you or some one more vigorous than you 
can break them, it is impossible for any one speaking 
otherwise than 1 now speak to speak well ; since, for my 
part, I have always the same thing to say, that I know 
not how these things are, but that out of aU with whom 
I have ever discoursed, as now, not one is able to say 
otherwise, and to maintain himself." f 

* Webster's Worlcs, vol. vi. pp. 225, 220, 227, 22S, 231. 
t The Gorgias of riato. 



21 



Show me that I am wrong, — tliat this con- 
clusion is not founded in the Constitution, and is 
not sustained by reason, — and I shall at once 
renounce it ; for, in the present condition of 
affairs, there can be no pride of opinion which 
must not fall at once before the sacred demands 
of country. Not as a partisan, not as an advo- 
cate, do i make this appeal, but simply as a 
citizen, who seeks, in all sincerity, to offer his 
contribution to the establishment of that pol- 
icy by which Union and Peace may be re- 
stored. 

THREE SOURCES OP CONGRESSIONAL 
POWER. 

If we look at the origin of this power in 
Congress, we shall find that it comes from three 
distinct fountains, any one of which is ample 
to supply it. Tiiree fountains, generous and 
hospitable, will be found in the Constitution 
ready for this occasion. 

First, From the necessity of the case, ex 
necessitate rei, Congress must have jurisdiction 
over every portion of the United States where 
there is no other governmejit ; and since, in the 
present case, there is no other government, the 
whole region falls within the jurisdiction of 
Congress. This jurisdiction is incident, if you 
please, to that guardiansiiip and eminent do- 
main which belong to the United States with 
regard to all its territory and the people there- 
of, and it comes into activity when the local 
government ceases to exist. It can be ques- 
tioned only in the name of the local govern- 
ment ; but since this government has disap- 
peared in the rebel States, the jurisdiction of 
Congress is uninterrupted there. The whole 
broad rebel region is tabula rasa, or " a clean 
slate," where Congress, under the Constitution 
of the United States, may write the laws. In 
adopting this principle, I follow the authority 
of the Supreme Court of the United States in 
determining the jurisdiction of Congress over 
the Territories. Here are the words of Chief 
Justice Marsliall : — 

" Perhaps the power of governing' a Territory be- 
longing' to tht' United Slates, which lias not, by becom- 
ing a State, a<'(jiiirert tlie means of self-government, 

nidi/ refill f III'. ■i-.<sii.rili/ from tliefiicts that it is not witli- 
in ihf jii ritiilirlioii ()/' inn/ pnrticiilar State, and is with- 
in the iiowcr :iiid jurisdiction of the Unfted States. 
The 1 ight to g'overn may be the natural consequence 
of the rijjht to acquire territory." * 

If the right to govern may be the natural 
conserpience of the right to acquire territory, 
surely, and by much stronger reason, this right 
must be the natural consequence of the sover- 
eignty of the United States ■wherever there is 
no local government. 

Seconilly, This jurisdiction may also be de- 
rived from the rights of war, which surely are 
not less abundant for Congress than for the 
President. If the President, disregarding the 
pretension of State rights, can appoint milltai-y 
governors within the rebel States to serve a 

* American Insurance Company vs. Carter, 1 1'eters, 
p. Hi'i. 



temporary purpose, who can doubt that Con- 
gress can exercise a similar jurisdiction ? That 
of the President is derived from the war-pow- 
ers ; but these are not scaled to Congress. If 
it be asked where in the Constitution such pow- 
ers are bestowed upon Congress, I reply, that 
they will be found precisely where the Presi- 
dent now finds his powers. But it is clear that 
the powers to " declare war," to " suppress in- 
surrections," and to " support armies," are all 
ample for this purpose. It is Congress that 
conquers ; and the same authority that conquers 
must govern. Nor is this authority derived 
from any strained construction ; but it spring* 
from the very heart of the Constitution. It is 
among those powers, latent in peace, which 
war and insurrection call into being, but which 
are as intrinsically constitutional as any other 
power. 

Even if not conceded to the President, these 
powers must be conceded to Congress. Would 
you know their extent? They will be found 
in the authoritative texts of public law, — in 
the works of Grotius, Vattel, and Wheaton. 
They are the powers conceded by civilized so- 
ciety to nations at war, known as the Rights of 
War, — at once multitudinous and minute, vast 
and various. It would be strange if Congress 
could organize armies and navies to conquer, 
and could not also organize governments to 
protect. 

De Tocqueville, who saw our institutions 
with so keen an eye, remarked, that since, in 
spite of all political fictions, the preponderating 
power resided in the State governments, and 
not in the National Government, a civil war 
here " would be nothing but a foreign war in 
disguise."* Of course the natural consequence 
would be to give the National Government in 
such a civil war all the rights which it would 
have in a foreign war. And this conclusion, from 
the observation of the ingenious ])ubliclst, has 
been practically adopted by the Supreme Court 
of the United States in those recent cases 
where this tribunal, after the most learned ar- 
gument, followed by the most careful consid- 
eration, adjudged, that since the Act of Congress 
of July 13th, "1861, the National Government 
has been waging " a territorial civil war," in 
which all property afloat, belonging to a resident 
of the belligerent territory, is liable to capture 
and condemnation as lawful prize. But surely, 
if the National Government may stamp upon 
all residents in this belligerent territory the 
character of foreign enemies, so as to subject 
their ships and cargoes to the penalties of con- 
fiscation, it may jierform the milder service of 
making all needful rules and regulations for the 
government of this territory under the Consti- 
tution, so long as may be requisite for the sake 
of peace and order; and, since the object of 
war Is "indemnit}- for the past and security for 
the future," it m;iy do every thing necessary to 
make these effectual. But it will not be enough 

* Democracy in America, vol. ii. cli. ^5, p. 34o. 



22 



to crush the Rebellion. Its terrible root must 
be exterminated, so that it may no more flaunt 
in blood. 

Thirdly, But there is another source for this 
jurisdiction which is common alike to Congress 
and the President. It Avill be found in the 
constitutional provision that " the United States 
shall ouarantee to every State in this Union a 
republican foi-m of government, and shall pro- 
tect each of them against invasion." Here, be 
it observed, are words of guaranty and an obli- 
gation of protection. In the original concession 
to the United States of this twofold power, there 
was an open recognition of the ultimate respon- 
sibility and duty of the National Government, 
conferring jurmliction above all pretended State 
rights; and now the occasion has come for the 
exercise of this twofold power thus solemnly 
conceded. The words of twofold power and 
corresponding obligation are plain, and beyond 
question. If there be any ambiguity, it is only 
aS to what constitutes a republican form of gov- 
ernment. But for the present, this question does 
not arise. It is enough that a wicked rebellion 
has undertaken to detach certain States from 
the Union, and to take them beyond the jn-o- 
tection and sovereignty of the United States, 
with the menace of seeking foreign alliance and 
support, even at the cost of every distinctive 
institution. It is well known that Mr. Madi- 
son anticipated this precipe danger from slavery, 
and upheld this precise grant of power, in order 
to counteract this danger. His words, which 
will be found in a yet unpublished document 
produced by Mr. Collamer in the Senate, seem 
prophetic. 

Among the defects which he remarked in the 
old Confederation was what he called "want 
of guaranty to the States of their constitutions 
and laws against internal violence." In show- 
ing why this guaranty was needed, he says, 
that, " according to republican theory, right 
and power, being both vested in the majority, 
are held to be synonymous; according to fact 
and experience, a minority may, in an a])peal 
to force, be an overmatch for the majority;" 
and he then adds, in words of wonderful pre- 
science, " Where slavery exists, the repuhlican 
theory becomes still more fallacious." Tliis was 
written in April, 1787, before the meeting of 
the convention that formed the National Con- 
stitution. But here we have the origin of the 
very clause in question. The danger which 
this statesman foresaw is now upon us. When 
a State fails to maintain a republican govern- 
ment ?o;VA officers sworn according to the reqidre- 
ments of the Constitution, it ceases to be a con- 
stitutional State. The very case contem]ilatcd 
by the Constitution has arrived, and the Na- 
tional Government is invested with plenary 
powers, whether of peace or war. There is 
nothing in the storehouse of peace, and there is 
nothing in tlie arsenal of war, which it may not 
employ in the maintenance of this solemn 
guaranty, and in the extension of that protec- 



tion against invasion to which it is pledged* 
But this extraordinary power carries with it a 
corresponding duty. Whatever shows itself 
dangerous to a republican form of government 
must be removed without delay or hesitation ; 
and, if the evil be slavery, our action will be 
bolder when it is known that the danger was 
foreseen. 

In reviewing these three sources of power, I 
know not which is most complete. Either 
would be ample alone ; but the three together 
are three times ample. Thus out of this triple 
fountain, or, if you please, by tliis triple cord, 
do I vindicate the power of Congress over the 
vacated rebel States. 

But there are yet other words of the Consti- 
tution which cannot be forgotten : "New States 
may be admitted by the Congress into this 
Union." Assuming that the rebel States are 
no longer de facto States of this Union, but 
that the territory occupied by them is within 
the jurisdiction of Congress, then these words 
become completely applicable. It will be for 
Congress, in such way as it shall think best, to 
regulate the return of these States to the Union, 
whether in time or manner. No special form 
is prescribed. But the vital act must proceed 
from Congress. And here again is another 
testimony to that Congressional power, which, 
under the Constitution, will restore the Repub- 
lic. 

UNANSWERABLE REASONS FOR CONGRES- 
SIONAL GOVERNMENTS. 

Against this power I have heard no argu- 
ment which can be called an argument. There 
are objections founded chiefly in the baneful 
pretension of State rights ; but these objec- 
tions are animated by prejudice rather than 
reason. Assuming the imi)eccability of the 
States, anij openly declaring that States, 
like kings, can do no wrong, '\yhilo, like kings, 
they wear the " round and top of sovereignty," 
politicians treat them with most mistaken for- 
bearance and tenderness, as if these rebel coi'- 
porations could be dandled into loyalty. At 
every suggestion of rigor. State rights are in- 
voked ; and we are vehemently told not to de- 
stroy the States, when all that Congress pro- 
poses is simply to recognize the actual condition 
of the States, and to undertake their temporary 
government by providing for the condition of 
])olitical syncope into which they have fallen, 
and, during this interval, to substitute its own 
constitutional pow(^rs for the unconstitutional 
powers of the Rebellion. Of course, therefore. 
Congress will blot no star from the flag, nor 
will it obliterate any State liabilities ; but it 
will seek, according to its duty, in the best way, 
to maintain the great and real sovereignty of 
the Union by upholding the flag unsullied, and 
by enforcing everywhere within its jurisdiction 
the supreme law of the Constitution. 

At the close of an argument already too long 
drawn out, I shall not stop to array the consid- 



23 



erations of reason and expediency in behalf of 
this jurisdiction ; nor shall I dwell on the inev- 
itable influence that it must exercise over Sla- 
very, which is the motive of the Rebellion. To 
my mind nothing can be clearer, as a proposi- 
jion of constitutional law, than that, everywhere 
yithin the exclusive jurisdiction of the National 
Government, slavery is impossible. The argu- 
nent is as brief as it is unanswerable. Slavery 
ij so odious that it can exist only by virtue of 
psitive law, plain and unec|uivocal ; but no 
sich words can be found in the Constitution : 
tlerefore slavery is impossible within the ex- 
chsive jurisdiction of the National Govern- 
mmt. For many years I have had this convic- 
tic^i, and have constantly maintained it. I am 
glal to believe that it is implied, if not ex- 
,pr(*;sed, in the Chicago Platform. Mr. Chase, 
am^ng our public men, is known to accept it 
sincerely. Thus slavery in the Territories is 
uncjinstitutional ; but if the rebel territory 
falls under the exclusive jurisdiction of the 
Natbnal Government, then slavery will be im- 
possible there. In a legal and constitutional 
senst, it will die at once. The air will be too 
purt^ for a slave. I cannot doubt that this 
grea} triimiph has been already won^ The 
monjCnt that the States fell, slavery fell also ; 
so"" tiat, even without any proclamation of the 
Preadent, slavery had ceased to have a legal 
and constitutional existence in every rebel 
Stati'. 

But even if we hesitate to accept this im- 
]-)ortant conclusion, which treats slavery within 
the rebel States as already dead in law and 
Constitution, It cannot be doubted, that, by the 
extension of the Congressional jurisdiction 
over the rebel States, many difficulties will be 
removed. Plolding every acre of soil and 
every inhabitant of these States within its 
jurisdiction. Congress can easily do, by proper 
legislation, whatever may be needful within 
rebel limits in order to assure freedom and to 
save society. The soil may be divided among 
patriot soldiers, poor whites, and freedmen ; 
but, above all things, the Inhabitants may be 
saved from harm. Those citizens in the rebel 
States, who, throughout the darkness of the 
Rebellion, have kept their faith, will be pro- 
tected, and the freedmen will be rescued from 
hands that threaten to cast them back into 
slavery. 

But this jurisdiction, which is so completely 
I practical, is grandly conservative also. Had it 
been early recognized that slavery depends 
exclusively upon the local government, and 
that it falls with that government, who can 
doubt that every rebel movement would have 
been checked ? Tennessee and Virginia would 
never have stirred ; Maryland and Kentucky 
would never have thought of stirring ; there 
would have been no talk of neutrality between 
the Constitution and the Rebellion ; and every 
border State would have been fixed In its loy- 
alty. Let it be established in advance, as an in- 
separable incident to every act of secession, 



that it is not only impotent against the ConstI 
tution of the United States, but, that, on its 
occurrence, both soil and inhabitants will lapse 
beneath the jurisdiction of Congress, and no 
State will ever again pretend to secede. The 
word " territory," according to an old and 
quaint etymology, is said to come from terreo, 
to terrify, because it was a bulwai-k against the 
enemy. A scholiast tells us, '■'■ Territorlum est 
qulcquid Jwslis terrendl cmtsd conslitulum" " A 
territory Is something constituted In order to 
terrify the enemy ; " but I know of no way in 
which our rebel enemy would have been more 
terrified than by being told that his course 
would inevitably precipitate him into a territo- 
rial condition. Let this principal be adopted 
now, and it will contribute essent'ally to that 
consolidation of the Union which was so near 
the heart of Washington. 

Tlie necessity of this principle Is apparent as 
a restraint upon the lawless vindlctlveness and 
inhumanity of the rebel States, whether 
against Union men or against freedmen. Union 
men In Virginia already tremble at the thought 
of being delivered over to a State government 
wielded by original rebels pretending to be 
patriots; but the freedmen, who have only 
recently gained their birthright, are justified 
in a keener anxiet}-, lest It should be lost as 
soon as won. Mr. Saulsbury, a senator from 
Delaware, with most instructive frankness, has 
announced, in public debate, what the restored 
State governments will do. Assuming that 
the local governments will be preserved, he 
predicts that in 1870 there will be more slaves 
in the United States than there were In 1860, 
and then unfolds the reason as follows, all of 
which will be found In the " Congressional 
Globe : " * — - 

" By your acts you attempt to free the slaves. You 
will not have tlieiu among you. You leave them where 
they are. Then what is to be the result ? 1 presume 
that local State governments will be preserved. It 
they are, if the people have a right to make thiir own 
laws, and to govern themselves, they will not only 
re-enslave every person that you attempt to set free, 
but they will re-enslave the whole race." 

Nor has the horrid menace of re-enslavement 
proceeded irom the senator from Didaware 
alone. It has been uttered even by Mr. Wii- 
ley, the mild senator from Virginia, s])eaking 
in the name of State rights. JS^ewsjiapers 
have taken up and repeated the revolting strain. 
That is to say, no matter what may l)e done 
for emancipation, whether by proclamation of 
the President, or by Congress (nen, the State, 
on resuming its place In the Union, will, In the 
e.xerclse of Its sovereign power, re-enslave every 
colored person within its jurisdiction ; and this 
is the menace from Delaware, and even from 
regenerated Western Vii-ginia ! I am obliged 
to senators for their frankness. If I needed 
any additional motive for the urgency with 
which I assert the power of Congress, I should , 
find It In the pretensions thus savagely pro- 
claimed. In the name of Heaven, let us spare 

* Thirty-seventh Congress, Second Session, 'iiX 3Iay, 
1802, part iii. p. l!)i.'3. 



24 



no effort to save the country from this shame, 
and an oppressed people from this additional 
outrage ! 

" Once free, always free." This is a rule of 
law, and an instinct of humanity. It is a self 
evident axiom, which only tyrants and slave- 
traders have denied. The brutal pretension 
tiuis flamingly advanced, to re-enslave those 
who have been set free, puts us all on our 
uuard. There must be no chance or loop-hole 
for such an intolerable. Heaven-defying iniquity. 
Alas ! there have been crimes in human his- 
tory ; but I know of none blacker than this. 
There have been acts of baseness ; but I know 
of none more utterly vile. Asjainst the possi- 
bilitv of such a sacrifice, we must take a bond 
wliich cannot be set aside ; and this can be 
ibund only in the powers of Congress. 

Congress has already done much. Besides 
its noble Act of Emancipation, it has provided 
that every person guilty of treason, orof incit- 
ing or assisting the Rebellion, " shall be dis- 
(jualified to hold any office under the United 
States ; " and, by another act, it has provided 
that every person elected or appointed to any 
office of honor or profit uniler the Government 
of the United States, shall, before entering 
upon its duties, take an oath " that he has not 
voluntarily borne arms against the United" 
States, or given aid, countenance, counsel, or 
encouragement to persons engaged in armed 
liostility thereto, or sought or accepted, or at- 
tempted to exercise, the functions of any office 
Avhatever under any authority, or pretended 
authority, in hostility to the United States." * 
This oath will be a bar against the return to 
7iational office of any who have taken part 
with the rebels. It shuts out in advance the 
whole criminal gang. But these same persons, 
rtyected by the National Government, are left 
free to hold office in the States; and hei'e is 
another motive to further action by Congress. 
The oath is well as far as it goes : more must 
be done in the same spirit. 

But enough. The case is clear. Behold 
the rebel States in arms against that paternal 
government to which, as the supreme condition 
of their constitutional existence, they owe duty 
and love ; and behold all legitimate powers, 
executive, legislative, and judicial, in these 
States, abandoned and vacated. It only re- 
viains that Congress should enter and qssume the 
proper jurisdiction. If we are not ready to 
exclaim with Burke, speaking of revolutionary 
France, " It is but an empty space on the po- 
litical map," we may at least adopt the response 
hurled back by Mirabeau, that this empty 
space Is a volcano red with fianies and over- 
flowing with lava-floods. But whether we deal 
with it as " empty space " or as " volcano," the 
jurisdiction, civil and military, centres in Con- 
gress, to be employed for the happiness, wel- 
fare, and renown of the American people, — 
changing slavery into freedom, and present 

* Act of Congress, July 2, 1S02, ch. 123.. 



chaos into a Cosmos of perpetual beauty and 
power. 

§2. 

MAKE HASTE SLOWLY; IKREVERSI- 
BLE GUARANTIES NEEDED. 

Speech in the Senate of the United 
States, June 13, 1864. 

The question arose on the reference of the credentials 
of Mr. Flsnr.A^'K, as senator of Arkansas, to the 
Committee of the Judiciary. 

Mu. SuMXER. — Mr. President, I begin Ir 
expressing my sympathy with every loyal cha^ 
acter in a rebel State. Knowing avcII. Iron 
long experience, the cruel rule and dominatim 
of slavery, even in this Chamber, I cannot \e 
indifferent to the trials of loyalty anywhere m 
these latter days. Show me a man who ii a 
rebel State has stood faithful to the natioial 
cause, and I go forth to meet him with ny 
heart in my hand. To have been true a. a 
time when truth was disowned is enough for 
honor as well as thanks. But the merits of in- 
dividuals cannot determine the rights of States. 

The case is too important. If indlvicual 
merits, universally recognized, could lave 
j saved a State to present rights in the Unon, 
Tennessee would not now be a self-con denned 
e*xile. There are few anywheyj who have 
been so entirely true as Andrew Johnson, jnd 
not one in all the rebel States who so bravely 
encountered the Rebellion face to face. In 
himself he was more than ten men ; and en 
men might have saved Sodom. Besides, he 
was a senator on this floor when the State 
which he represented took its place in the reuel 
confederacy and joined in war against flie 
National Government; but he staid beliind 
with his country, and kept his seat here. Pur- 
sons ignorant of parliamentary law have some- 
times argued from the latter circumstance that 
rebel Tennessee was still entitled to her ancient 
rights in the Union ; but they forgot two ^trin- 
ciples — in England, the original home of par- 
liamentary law — fixed long ago, beyond all 
question : first, that the power once conferred 
by an election to Parliament is irrevocable, so 
that it is not aflected by any subsequent change 
in the constituency; and, secondly, that a 
•member, when once chosen, is a niemher for 
the whole kingdom, becoming thereby, according 
to the words of an early author, not merely 
knight or burgess of the county or borough 
which elected him, but knight or burgess of Eng- 
land (Cushing's " Parliamentary Law," page 
284). If these two principles are not entirely 
discarded in our political system, then the seat 
of Andrew Johnson was not in any respect 
affected by the subsequent madness of his State, 
nor can the legality of his seat be any argu- 
ment for the ancient rights of his State. Nor, 
again, can the fact that Andrew Johnson has 
been selected by the convention of a powerful 
political party as a candidate for the Vice-Pres- 
idency be any argument for these ancient 



25 



rights. It is not necessary that a candidate for 
President or Vice-President slioukl belong to a 
State. It is enongh, under the Constitution, 
that he is a " citizen of the United States." 
He ma}' be of the District of Cohunbia, or of 
a Territory, or of a rebel State ; for these are 
all ei{U(Uhj ivlthiii the rightful Jurisdiction of the 
Waited Stales, and this is enough. The Jurisdic- 
tion of the United States is permanent and inde- 
feasible. Therefore, I repeat again, we must 
look, on the present occasion, beyond the virtues 
of individuals. Not all the virtues under heaven 
can suffice to make a State of this Union, or to 
give any claim for restoration to ancient rights, 
wiiere there is a fiillure to comply with essen- 
tial requirements. 

The question under consideration is of mo- 
mentous interest. It concerns primarily the 
claim to a seat in the Senate ; but it involves 
also the right of the State of Arkansas to share 
at this moment in the National Govei nment by 
a representation in Congi'ess, and also the 
other right of participating in the approaching 
Presidential election. And behind this great 
question looms that other question, " How shall 
we treat the rebel States '? " This (jucstion has 
already been answered by the House of Repre- 
sentatives in a bill which has been passed by 
that body ; but it has not yet been decided by 
the Senate. 

Unexpectedly the great question and all the 
subordinate questions are now presented for de- 
cision. Not only Arkansas, but Louisiana, and 
^ every other rebel State, will await your judg- 
ment. No question of equal importance has 
been presented since it was determined to meet 
the Rebellion by arms. 

For the present I forbear all minute discus- 
sion, either of history or principle. It will be 
enough if I state the case, and exhibit the cjues- 
tions involved. 

William M. Fishback, a citizen of Ai-kansas, 
appears before the Senate of the United States, 
and claims membership therein. He asserts 
that he has been duly chosen to fill the unex- 
pired term of Senator Sebastian, who was ex- 
pelled in 18G1 for complicity with the RebeUion ; 
and he produces a certificate purporting to be 
signed by the Governor of Arkansas. 

Shall this claimant be admitted to a seat in 
the Senate ? Such is the immediate question. 
But I have said that there are other questions, 
of the most far-reaching character, which must 
be considered now and here, for they all enter 
into the present case. If we now admit the 
present claimant, we must also now admit that 
other claimant, Avho has presented himself with 
like credentials, as a colleague. The question 
is not, therefore, Shall Arkansas have one vote 
in this Senate ? but, Shall it have two ? 
I But if Arkansas is now to be fully represent- 
ed in this Senate, does it not follow that it is to 
be represented with equal fulness in the House 
of Representatives V If represented in that 
Chamber, such representation must be under 
the existing apportionment act, which assigns 



to Arkansas two representatives, who are to 
be chosen by districts, without reference to the 
number of votes polled in either. 

One privilege will draw after it another. 
To him that hath it shall be given. If Arkan- 
sas is admitted to an immediate rej)resentation 
in the National Government, this rebel State, 
which has overthi-own the Constitution within 
its borders, and assumed the fiont of war, can 
participate in the approaching election of Pres- 
ident and Vice-President by organizing an 
electoral college ; and, in case the election of 
either of those great ofiicers should devolve 
upon Congress, it can give a vote efi'ecting the 
result as weighty as that given by Massachu- 
setts, New York, or Illinois ; for in such case 
the vote in the Senate is^>e?' capita, and in the 
House it is by States. 

Therefore, sir, I repeat, the decision of the 
question now before us rules all the questions 
which can arise iqjon the representation of Ar- 
kansas in the Congress of the United States, • 
and also the other question of the participation 
of Arkansas in the election of President and 
Vice-President for the term of four years next 
ensuing. The importance of such a subject 
cannot be exaggerated. It is important con- 
stitutionally. It is important practically. It 
is important also to the peace of the country. 
It ought to be discussed fully and carefully, 
especially when it is considered that we are on 
the eve of a Presidential election which may 
possibly be affected by our decision. 

Mr. President, I am against the admission of 
Arkansas to representation in the ' National 
Government, at this time and under existing cir- 
cumstances. There may be a time, and there 
may be circumstances, when such representa- 
tion will be proper; but clearly at this moment 
it is improper, unreasonable, and dangerous. 
The reasons are obvious. 

First, The proposed representation is that 
of a minority not only of the people, but even 
of the ancient electors of Arkansas. It is su- 
perfiuous to say that such representation is in- 
consistent with republican principles, and can 
be vindicated only by an overruling necessity. 
But this point becomes of peculiar importance 
when it is considered that the minority, asking- 
representation in the National Government, 
has accpiiesced in rebellion, and, still further, 
that some of those comprising this minority 
have actively assisted the public enemy. Look 
at the facts. 

The authority and jurisdiction of tlie United 
States were wholly overthrown and subverted 
in Arkansas. By the action of the State Leg- 
islature, and of a convention called by this 
Legislature, followed by a popular vote, the 
State was made de facto a member of the 
rebel confederacy. However much we may 
deny the rightfulness or the h'gality of the pro- 
ceeding, there can be no question with regard 
to the fact. This at least is undeniaJde, and 
constitutes an essential circumstance in the ease. 
As a fact it must be recognized, whatever may 



26 



be tlie consequences, precisely as truth is 
recognized. But this unquestionable fact was 
followed by a general acquiescence of the peo- 
ple of Arkansas, so that this State became, in 
point of fact as in name, a rebel State', linked 
with other rebel States arrayed in arms against 
the National Government. 

At last, after much bloodshed, and various 
vicissitudes, through the exertion of the military 
power of the United States, a portion of the 
territory of this State has been rescued from 
rebel domination, and brouglit within the lines 
of our army. Tlie rest will follow, in process 
of time, and after further bloodshed, until 
eventually the whole State will be rescued 
from rebel domination, and brought Avithin the 
lines of our army. Even theii we shall be 
obliged to wait for the tokens of returning loy- 
alty also. But at the present moment the pos- 
session of the State is still contested by oppos- 
ing forces, and a minority only has signified an 
adhesion or re-adhesion to the National Gov- 
ernment. This objection, of course, may be 
removed by time ; but it existed in full force 
at the election of the claimant, and is decisive 
upon the question before us. 

_ Unqviestionably, it is accorded to the ge- 
nius of our government that the majority 
should rule. A majority is the natural base of 
a repul)lic. To found a republic on a minor- 
ity is scarcely less impracticable than to stand 
a pyramid on its apex. 

Secondly, The proposed representation of 
Arkansas in the Senate is unjust and inequi- 
table in its relation to the representation oi 
other loyal States ; and, if it be extended to 
representation in the House of Representa- 
tives and in the electoral colleges, it will be- 
come still more unjust and inequitable. By 
the original terms of union, the other States 
have agreed that the wAo/e/>eo/j/e of Arkansas 
shall have two senatoi-s, and representatives 
according to a fixed proportion ; and also elec- 
toral votes for President and Vice-President, 
according to the number of their senators and 
representatives. Now, it would be manifestly 
wrong toward all other loyal States, if not a 
fraud upon their rights, to assign such repre- 
sentation and such privilage to a. fraction of the 
people of Arkansas, constituting a. small minor- 
ity ; so that on all questions of legislation, or of 
treaties, or of a]ipointments, in the discharge 
of legislative, diplomatic, and executive trusts, 
this small minority would wield in the Senate 
all the power of a loyal State, while in the 
choice of President and Vice-President it might 
turn the scale. 

Thirdly, The miUtary ocrnipation of Arkan- 
sas, and the unsettled condition of the commu- 
nity there, cannot be forgotten when we are 
considering whether to admit the representa- 
tives of a newly organized civil government in 
that State. Military occupation is practically 
inconsistent with civil government. Even if 
the former does not absolutely exclude the lat- 
ter, yet it is evident that it must exercise a 



controlling influence in political affairs. It is 
impossible in time of war to preserve the con- 
ditions of peace, especially in time of civil 
war. Military power, when engaged in sub- 
duing rebellion, cannot be insensible to po- 
litical forces. It must win what it cannot over- 
come. From the nature of the case, ordinary 
political conditions are disturbed or subverted, 
and electoral power loses its essential charac- 
ter, so as to be no longer entitled to that pecu- 
liar respect which it enjoys under American 
institutions. These observations I apply solely 
to a theatre of war ; and I insist, that, so ap- 
plied, they are true, just, and indisputable. 

But, in point of fact, there is another and 
kindred force, which conspires with the former 
to disturb sufFrage in Arkansas. I mean that 
which proceeds from the incursions and hos- 
tile operations of the enemy. These prevent 
elections in some parts of the State, and ren- 
der them partial in others ; and this unhappy 
condition must continue so long as war pre- 
vails in that region. That I do not exagger- 
ate these perils, let me quote the testimony of 
General Gantt, a citizen of Arkansas, who 
participated in the recent election. " Thou- 
sands," says he " when they started to the 
polls in the morning, felt that at nightfall, 
when they returned, it might be to a mass of 
charred and smoking ruins and to a beggared 
and impoverished family ; and yet other thou- 
sands knew that the knife of the murderous 
crew of Shelby, Marmaduke, and others, was 
whetted for their throats, and might do their 
execution before the polls were reached ; and 
all knew, that, should the tide of war surge 
backward over our State, instead of being 
simply ordered out of the lines, bankruptcy, 
dungeons, chains, and an ignominious death, 
awaited them." This picture, Avhich is un- 
questionably authentic, while it interests us for 
the heroic sufferers, testifies conclusively how 
incapable Arkansas is at this moment to bear 
the burdens and discharge the trusts of a 
State. 

Fourthly, The present organization in Ar- 
kansas, which seeks representation on this 
floor, is without that legality of origin which is 
required by the American system of govern- 
ment. It Is revolutionary in its character. 
Nay, more, it may all be traced to a military 
order. Clearly this Incongruity will not be 
tolerated. A new civil government, to be rec- 
ognized as a State of this Union, cannot be lorn 
of the mili'ary power. Congress has jurisdic- 
tion over all those States in which loyal gov- 
ei-nments have been overturned; and this ju-. 
risdiction furnishes a natural, obvious, and 
constitutional origin for the new government. 
Without it, I am at a loss to see how the con- 
necting link of legality can be preserved be- 
tween the old and the new. This is not the first 
time In our national history that Congress has 
stood between the old and the new. Such is its 
natural place and function. At the separation 
of the colonies from the mother country, It in- 



27 



terfered by formal resolution to indicate the 
process by -which the new oovernments should 
be constituted, although the Tories of that day 
doubted the power. According to this ex- 
ample, sustained by congenial principles, Con- 
gress must now set the new government in 
motion, and infuse into it that vital force which 
is found in liberty regulated by law. 

Fifthly, Arkansas is at this moment shut 
out from commercial ■intercourse with the loyal 
States, under the proclamation of the President 
of 16th August, 1861, made in pursuance of 
the act of Congress of 17th July, 1861. By 
this proclamation, it is placed on the list of 
States in " insurrection against the United 
States; and all commercial intercourse between 
the same and the inhabitants thereof and the 
citizens of other States and other parts of 
the United States is unlawful until such insur- 
rection shall cease, or has been suppressed ; " 
and all goods, chattels, wares, and merchandise 
coming from any of the enumerated States and 
proceeding to any other State by land' or water 
are made liable to forfeiture (12 Statutes at 
Large, 1262). And yet Arkansas, while still 
under the ban of a Presidential proclamation 
and a Congressional statute establishing non-in- 
tercourse with other States, asks representation 
in the National Government. Disqualified for 
ti'ade with other States, it asks to govern them. 
The old practice is to be reversed. Tlius far 
in history, trade has preceded political power; 
now political power is to precede trade. Ar- 
kansas cannot send her merchants into the 
loj-al States to buy and sell. Can she send 
her representatives into this Chamber to vote ? 
Can she send her electors into the electoral 
college to choose a President ? 

Such, Mr. President, are five distinct rea- 
sons, obvious to the most superficial observer, 
against the recognition of anj' representation, 
at this time, from Arkansas : first, because the 
representation is founded on a minority ; sec- 
ondly, because any such repre.sentation, unjust 
in itself, is es])ecially unjust toward the loyal 
States ; thirdly, because the military occupa- 
tion of Arkansas, and its exposed condition, are 
inconsistent with civil government ; fourthly, 
because the present organization of Arkansas 
is without that legnlity of oririin which is re- 
quired by American institutions; and, fiftlily, 
because it is absurd to arhnit a State to r(']ii-e- 
sentation, which is still, l)y solemn proclamation, 
shut out from commercial intercourse with the 
loyal States. 

The argument thus far applies to the present 
case, without touching that other question, 
sometimes discussed, whether, in point of fact, 
Arkansas is still a State of this Union. In- 
deed, it is evident that Arkansas may have 
preserved her place in the Union, and yet not 
be entitled, at this moment, to representation 
in the National Government. She may be a 
State, but in a condition of ])olitical syncope 
or suspended animation. Or she may be under 
such abnormal influences as to render her, for 



the time being, incompetent to perform the 
functions of a State. 

But if Arkansas, by reason of her ordinance 
of secession and her open participation in the 
war agg,inst us, has lost hei- place in the Union, 
it is manifest that the Senate cannot now 
admit the claimant to a seat as one of its 
members; nor can it admit him at all, until 
Congress, by a joint vote, has restored the 
State to its original position. The power to 
admit States into this Union, and, by conse- 
quence, the power to re-admit them, are vested 
in Congress, to be exerted by joint resolution 
or bill, to which the concurrence of both 
Chambers, and the approval of the President, 
are necessary. Here I content myself with a 
statement. For the present T waive all con- 
sideration of the status of the seceded States. 
j The argument is complete without it. 

It is my desire to pres^ent this question on 

I the facts, and not on any theory or hypothesis. 

i I say nothing, therefore, on the question, what 

! constitutes a State Government in this Union ; 

] whether a State, by a process o[' suicide, may not 

i cease to exist ; whether a State may not by for- 

I feilure lose its rights as a Slate ; or whether, 

j when the loyal government is overthrown, a 

! State does not lapse into the condition of a Ter- 

1 ritory under Congressional jurisdiction, to be 

' treated like other national territory. All these 

questions I put aside. I choose to present the 

case of Arkansas on facts which nobody can call 

in question. 

It is enough that the loyal authorities were 
overthrown, and that there were no functionaries 
holding office under the State government^ who 
were bound by oath to su}>port the Constitution of 
the United States ; and since a State government 
is necessarily composed of such functionaries 
thus bound by the oath, there tvas no State govern- 
ment tvhich we could recognize. Sir, does any 
senator recognize the rebel governor of Arkan- 
sas ? Does any senator recognize the rebel 
functionaries who held the offices of the State ? 
Of course not. It follows, then, that the offices 
were empty. And this was the practical con- 
clusion of Andrew Johnson when he began to 
re-or£anize Tennessee by an address as early as 
18th March, 1862. Here are his words : — 

" I find most, if imt all, of the offices, both Stnte and 
Federal, vacated, either bv actual abandonment, or by 
the action of the incumbents in attempting to subor- 
dinate their functions to a power in hostility to the 
fundiimental law of tlie State, and subversive of her 
national allegiance." 

But if the offices were vacated, the machine 
of government cotild not work. And now the 
practical question is, how this machine shall be 
again put in motion. Obviously, not 'by any 
power within, hut by some power rcithout. 

But it may be said that the new State or- 
ganization in Arkansas is authorized by the 
President's Proclamation of amnesty, and that 
the claimant's case stands good according to 
the promises of this exceptional paper. _ A 
glance is enough to dispel this pretension. 
True it is that the President put forward a 



28 



plan for re-orsanizing loyal State <rovernments 
ill the rebel territory ; and he proffered a gua- 
ranty to these communities against domestic 
violence and rebel invasion ; but he neither 
proposed nor promised any representation in 
Congress or in the electoral college. Nor 
would such a proposition or promise by him 
have possessed the sliglitest validity ; because, 
by the Constitution, " each house is to be the 
judge of the elections, returns, and qualifica- 
tions of its own members." This provision is 
inconsistent with any prerogative of the Presi- 
dent over this question, even if such preroga- 
tive were not controlled by that other provision 
which reserves to Congress the power to admit 
" new States into the Union." 

The Proclamation declared that whenever in 
an)- of the States of Arkansas, Texas, Louisiana, 
Mississippi, Tennessee, Alabama, Georgia, Floi'- 
ida, South Carolina, and North Carolina, a 
number of persons not less than one-tenth in 
number of the votes cast in such State at the 
presidential election of 1860, each having taken 
the particular oath prescribed by the Procla- 
mation and not having violated it, and being a 
qualified voter by the election law of the State 
existing immediately before its secession, and 
excluding all others, should re-eMahlisU a State 
government which should be re])ublican, andin 
no wise contravening the Proclamation oath, it 
should be recognized as the true government 
of the State, which should receive thereunder 
the benefits of the constitutional provision 
which declares that " the United States shall 
guarantee to every State in this Union a repub- 
lican form of government," &c. But subse- 
quently in the same paper the President de- 
clares " that whether members sent to Congress 
from any State shall be admitted to seats con- 
stitutionally rests exclusively with the respective' 
houses, and not to any extent with the Execu- 
tive." Nothing is said in this paper on the 
participation of such re-organized State in 
the approaching Presidential election ; and the 
question seems to have been left open for the 
judgment of Congress, to which It obviously be- 
longs, to be settled by joint action. 

It is plain, therefore, that the re-organization 
contemplated by the President was in its nature 
provisional. It was not complete or permanent 
in itself, but evidently looked to the action of 
the legislative power to determine representa- 
tion, whether in Congress or in the electoral 
college. Loyal governments might be estab- 
lished in the manner indicated for the conser- ' 
vation of local order, and these would be 
recognized and upheld provisionally by the 
military power. Considered from this point of 
view, and in the absence of Congressional ac-' 
tion on the subject, the President's plan of re- 
construction was, to a certain extent, proper, if 
not necessary, and very little obnoxious to the 
objections sometimes brought against it. A 
handful of persons keeping their loyalty might 
justly look to the military power for support 
against a hostile majority. Such a handful 



might be allowed to set up a local government 
for the management of their local affairs, and 
to assist the National Government in the work 
of restoration. All this was natural. But the 
limitation was clear. Admitting that it was 
right to authoi'ize the establishment of a local 
government for the benefit of a handful of loyal 
persons in a rebel State, it does not by any 
means follow that such local government can 
be entitled to representation in the National 
Government as a loyal unit, on an equality 
with the loyal States of the Union. The two 
questions are entirely different, and the latter 
was wisely left untouched by the Pi-oclamation. 

Besides, the power of the President to insti- 
tute this Government is only as Commander- 
in-Chief of the Army. It is therefore military 
in its character. But what proceeds out of 
this power is, from the nature of the case, pro- 
visional or temporary until it has received the 
sanction of Congress. To a certain extent, and 
from the necessity of the hour, military govern- 
ments may be constituted by the President ; 
but permanent civil governments ivith — 

Mr. CoLLAMER. — To last beyond the war. 

Mr. Sumner. — As the senator from Ver- 
mont well suggests, " to last beyond the war," 
tvilh a right of representation in Congress and 
in the electoral college, cannot he constituted hy 
the President. Such a power would be open 
to infinite abuse, and in the hands of an am- 
bitious President might be employed for selfish 
purposes. The national safety, in harmony 
with republican principles, requites that it 
should be exercised by Congress, which must 
take the lead in calling the new government 
into being. 

Against these conclusions there can be no 
argument founded on principle. But it may 
be said that the admission of senators from 
Virginia constitutes a precedent applicable to 
the present case. This is a mistake. The Vir- 
ginia case is a precedent for nothing, unless it 
be to make us more careful for the future. It 
arose at the beginning of tlie troubles, before 
the relations of the rebel States had become 
fixed by pertinacious war, and it was little con- 
sidered at the time. But, beyond all, it had this 
peculiarity, that a large section, geographically, 
of Virginia, had, In point of fact, declined to 
recognize the pretension of secession, and had 
promptly constituted a loyal government with- 
out military intervention, so that practically it 
had never been a part of the rebel government. 
The circumstances were so exceptional, that 
this case cannot be cited to determine our con- 
duct toward a State which in all its parts, 
throughout its Avhole jurisdiction, accepted the 
pretension of secession, and maintained it by 
arms. Such a State Is, beyond all cjuestion, a 
rebel State, with no title to a place in Congress 
or in the electoral college until re-admission to 
its ancient rights by a vote to both houses of 
Congress. 

Surely the re-admission of a rebel State to 
representation is not less important than its 



29 



original admission into the Union. And, when 
it is considered that what is done for one such 
State will be a jirecedent for all, its importance 
is multiplied by the number of rebel States ; 
and this again is augmented infinitely by the 
disturbed condition of affaiis, and the supreme 
duty to take every precaution for the restora- 
tion of permanent tran([uillity. It will not be 
enough if we comply with certain forms or con- 
stitute a State in name only. Much more must 
be done, and all this nuiatbe placed under 
fixed and irreversible guarantTe?T''"''^TW' will Tie 
victory on the battle-field if these guaranties 
are not obtained. It is to make these possible 
that our armies are now engaged in the deadly,' 
shock. It is in order that the future at least 
may be sevure, that the present is given over 
to blood and slaughter, — to graves and epitaphs. 
And here is the difference between yonr re- 
sponsibilities and tiiose of the soldier. T^ lat- 
ter sees only the present ; but you must gee the 
i future also. The soldier meets the enehiy face 
'to "face. The statesman, hij wise precautions, 
provides that the enemy, once confjylered, shall 
never rise again. Vain is the work of the 
soldier if it be not consummated and crowned 
by the wisdom of the statesman. 

For years, slsvery has been claiming its 
guaranties in States and Territories, and these 
chambers have echoed to the hoarse, inhuman 
cry. At last another voice has begun to pre- 
vail, sounding from basement to cupola, filling 
chamber and dome with another echo : it is the 
voice of Freedom claiming guaranties. But in 
the ajbsence of any constitutional prohibition 
of slavery, it is ewlent that these guaranties 
can be obtained only under the sanction of 
Congress acting in its legislative capacity. And 
here we are brought again to the question of 
representation ; for it is clear that representation 
cannot be conceded until the guaranties for 
freedom have been secured. Therefore, repre- 
sentation can be obtained only under the sanc- 
tion of Congress in its legislative capacity. 

That Congress in its legislative capacity must 
determine this question is sustained by the ne- 
cessity of/the case, by reason, by authority, 
and by the President's Proclamation itself. 

1. I have already shown that guaranties for 
freedom are a condition, precedent to represen- 
tation ; so that by the necessity of the case the 
latter must be determined by the joint action of 
both houses of Congress. Such is one form in 
which this necessity appears. But there is 
another. 

Congress must have, jurisdiction over every 
portion of the United States where there is no 
other government; but there can be no other 
government in the rebel States, so that the 
words of Chief Justice Marshall are as applica- 
ble to a State without a loyal State government 
as they were originally to a Territory : — 

" I'crlinps tlie power of governinfr a Territory be- 
longing to tlie Tnited Stati'.s, wliicti has not by becom- 
ing a State acquired the means of self-i/overnmeiit, may 
result necessarily from the fact tliat it is not within the 



jurisdiction of any particular State, ANn is within 

THE I>OWEK AND JUKISDIOTION OK TUl'; UnITKD 
S't.VTKS." — American Insuratict Compavy \s. Carter, 
1 reters, 5:5-2. 

The three things which are here affirmed by 
a Territory may all be affirmed of a rebel 
State. 

First, It has not the means of self-govern- 
ment. 

,' Secondly, It is not within the jui'isdiction 
of any p'Urtlcular State. 

Thirdly, It is within the power and juris- 
diction of the United States. 

From these again the necessity of Congres- 
sional jurisdiction ensues. 

2. It would be unreasonable, if not absurd, 
for each chamber to determine the question of 
representation for itself Suppose, for instance, 
that the Senate admit claimants from Arkan- 
sas, and the House reject them. Then we 
should witness the anomaly of a State admitted 
to one chamber, and excluded from the other. 
This would be a case oi' semi-admission into the 
Union. Part would be in, and part out. The 
senators and re])rcsentatives of the same 
State would be compelled to separate, as, in 
Grecian mythology, one of the inseparable 
twins. Castor and Pollux, was translated to 
Olympus, and the other was left npon earth. 

I Surely the Constitution does not contemplate 
I the repetition of any such fable. Arkansas 

must stay away until she can be received in 
! both houses, and can be recognized as a unit, 
I and not as a fraction ; but no power short of 

Congress can assure this equal reception in 
j both houses. 

3. Authority is in harmony with reason. 
I This question seems to have been anticipated 
[ by the opinion of the Supreme Court of the 

United States as pronounced by Chief Justice 
Taney in the case of Luther vs. Borden (7 How- 
ard's Reports, 42). Here are the words : — 

" Tlie fourth section of the fourtli article of the Con- 
stitution of tlie United States provides that the United 
States shall guarantee to every .State in the Union a re- 
publican form of government, and shall protect each 
of them against invasion, and, on the application of the 
Legislature or of the Executive (when tlie Legislature 
cannot be convened), ag:iiust domestic violence. 

•' Under thin (irtUlc if the ('inist/tiition, it rests with 
Congress to decide irhut //arernynent is the est(ditished 
one in a State. For, as the United States i/nnrantee 
to each State a repnbiican government, Con;//' .is must 
necessarily decite what government is establUhed in the 
State before it can determine trhether it is rejiiihtican or 
not. And when the senators and representatives of 
a State are admitted into the councils of the Union, 
the autliority of the government under whicli tliey 
are appointed, as well as its republican character, 
Is recognized by the proper constitutional authority. 
And its decision is binding on every otiier department 
of the government, and could not be questioned in a 
judicial tribunal." 

According to these positive words, " it rests 
with Congress to decide what government is 
the established one in a State." But Congress 
can decide only through joint action. 

4. The Constitution also, by a positive text, 
seems to place the question beyond doubt. 
There are express words, as we have already 
seen, declaring that '' the United States shall 



30 



truarantee to every State in the Union a repub- 
lican form of government." If "these words 
stood alone, the case would be clear; but it 
becomes clearer still when we revert to the 
other clause, by which it is provided that "the 
Congress shall have power to make all laws 
which shall be necessary and proper for carry- 
ing into excculion all powers vested by this Con- 
stitution ill the Government of the United States." 
Now, since the guaranty is vested in the gov- 
ernment of the United States, it follows that 
Congress has the power for carrying it into 
execution. In Aikansas, a republican govern- 
ment has been overthrown by rebellion. Con- 
gress must see that such government is restored ; 
and to this end it has all needful power. Con- 
gress, and not the President, must decide when 
the restoration has taken place. 

5. There is also the President's Proclamation, 
which, by its very terms, necessarily implies 
tlie action of Congress in the restoration of a 
State to the Union. There is first the positive 
declaration that " whether members sent to 
Congress from any State shall be admitted to 
seats constitutionally, rests exclusively with the 
respective houses, and not to any extent with 
the Executive." But the language of the 
Proclamation and of the accompanying message 
plainly assumes tiiat the rebel States have lost 
their original character as States of the Union. 
Thus in one place the President says that " loyal 
State governments have ibr a long time been 
suhrerted." But if subverted, they are no longer 
States. In another place he proposes to " re- 
inaugurate loyal State governments." But a 
proposition to re-inaugurate implies a new start. 
In another place he proposes to ^'re-establish a 
State government which shall be republican." 
But we do not re-establish a government which 
continues to exist. In another place he pro- 
poses to " set up " a State government in the 
mode prescribed. But vi^hatever requires to be 
set lip is evidently down. In another place 
he seeks to guarantee and protect a " revived 
State government." But we revive only what 
is dead^ or, at least, faint. There is still another 
l)lace, where the President evidently looks to 
the possibility of a change of name, boandary, 
subdivision, constitution, and general code of 
laws, in the restored State. These are his iden- 
tical words: "And it is suggested as not im- 
proper, that, in constructing a loyal State gov- 
ernmei t in a State, the name of the Slate, the 
boundar;/, the subdivisions, the constitution, and 
the general code of laws, as before the Rebel- 
lion, be maintained." Thus the President does 
not Insist that even the name and boundary of 
a State shall be preserved. He contents him- 
self with suggesting that it will not be " improp- 
er " to preserve them "in constructing a loyal 
State government." Of course this suggestion 
of what is not improper implies necessarily that 
in his opinion even these great changes were 
within the discretion of the revived community. 

I have called especial attention to the lan- 
guage of the President, because it constantly 



assumes, in a succession of phrases, that the 
rebel States are in an abnormal condition, from 
which they are to be recovered or revived ; and, 
since such restoration or revival can be consum- 
mated only by the action of Congress, it is 
reasonable to infer that such was his expecta- 
tion. At all events, the Proclamation, by its 
repeated assumptions with regard to the rebel 
States, testifies to the necessity of Congressional 
action. 

We have already seen that Andrew Johnson 
had declared the State of Tennessee " vacated " 
by all local government which we are bound 
to respect; and Arkansas was in a similar situ- 
ation. But this language obviously harmonizes 
with that of the President. 

Such are some of the arguments for the 
power of Congress over this question. Others 
might be adduced ; but I have said enough. 
The necessity of the case, reason, the au- 
thority of the Supreme Court, the Constitu- 
tion, and the President's Proclamation, — each 
and all tend to the same conclusion, eve?i loilh- 
out resorting, to those tear powers which are all 
within the reach of Congress. But, if we glance 
at the latter, we shall fnd the power of Congress 
declared beyond question. There is nothing 
which the President may do as Commander- 
in-Chief which Congress may not direct and 
govern, according to the authoritative words 
of Chancellor Kent : — 

" Though the Constitution vests the executive power 
in the President, and dec^lares him Commander-in- 
Cliief of the Army and Navy of tlie United States, 
these poioers must necessnrlty be sii.lwrdiiuite to tlie Irg- 
is lative power in Congress." — KenVs Cominentaries, 
vol. i. p. 202, note 5. 

And these powers, vast as they may be when 
called into activity by the exigency of war or 
rebellion, become as constitutional as if speci- 
fied precisely in a written text. 

Mr. President, there is a saying of antiquity 
which is applicable to this question ; MaJ:e 
haste slowly. Do not fail to make haste ; but 
let your haste be governed/ by wisdom and 
prudence. In making haste, do not sacrifice 
all safeguards for the future. In your haste 
to welcome senators from rebel States, do not 
forget every thing else ; do not forget the prin- 
ciples of republican institutions, which are 
otiended by the rule of a minority ; do not 
forget the principles of justice among the 
States, which will be shocked by the admission 
of a fraction of a rebel State to an equality 
of power with loyal States ; do not forget the 
disturbed condition of the rebel States, ren- 
dering the civil authorities subordinate to the 
military ; do not forget the necessity of a con- 
necting link of legality between the old and the 
new ; do not forget that commercial inter- 
course must be restored, and every ban of 
proclamation or statute must be removed, be- 
fore representation can be allowed ; and still 
further, do not forget that the rebel States, by 
their own acts, sustained by bloody war, have 
voluntarily placed themselves outside the pale 
of political association, until Congress shall 



31 



rt'cognize them again as entitled to tln-ir 
oi-i<;inal ecjiiality ; and, above ail, do not tbr- 
o-et^that there can be no recognition of a rebel 
State until its permanent tranciuijlity has been 
assured by irreversible guaranties whieh no 
local power can disturb. Keep these tilings in 
mind, and then make haste. 

Of course, when, within the confines of a 
State, the Reboilion is trimnijhantly subdued, 
and the great body of the people testifies an 
unmistakable loyalty ; when local elections can 
be held according to the ordinary municipal 
forms ; when the laws and not arms prevail ; 
and when a government, republican in fact as 
in name, making slavery forever impossible, 
under any form or pretence, has been perma- 
nently established, — then will Congress, by 
proper legislative action, rejoice to welcome 
tiie newly constituted State to its eijual share 
in the National Government. But such wel- 
come must not he ]}recipi(ate. It can be offered 
only after a most careful inquiry into the 
actual condition of things, and the assured 
conviction that the rebel State has been newly 
constituted in fact as in name. And this cau- 
tion is needed not only for the good of the 
Union, but for the good of the newly consti- 
tuted State, which must be saved from prema- 
ture responsibilities beyond the measure of its 
present powers. 

Sir, it is much to be a State in full fellow- 
ship and equality with other States repre- 
sented in this Chamber and in the other 
Chamber, with a voice in the election of Presi- 
dent and Vice-President, and with a star on 
the national flag. To be admitted into these 
prerogatives and privileges, a State must be 
" above suspicion," and it must be able to use 
well all the great powers which belong to a 
State. But if a State is not yet " above sus- 
picion," and if it is not sti'ong enough to stand 
alone, even against domestic disturbers, it can- 
not expect immediate recognition. It must 
wait yet a little longer, until, restored at last 
in character and in strength, it can do all 
the duties of a State, and with master-hand 
grasp that Ulyssean bow which pretenders 
strive in vain to bend. 

■ Mr. President, I conclude as I began, with 
my heart's gratitude to those brave citizens 
who again in Arkansas have lifted the national 
banner. Let them not be disheartened ! Their 
country is with them in all their perils and all 
their efforts, longing to accept them agftin into 
ancient fellowship and e(|uality; but the time 
for this welcome has not yet come. Mean- 
while let them remember that " they also 
serve who only stand and wait." 



§ 3. 

AN OLIGARCHY OF THE SKIN INCON- 
SISTENT WITH A REPUBLICAN 
GOVERNMENT. 

From the debate on the Recognition of the 
State Government of Louisiana in the Senate, 
March 24, 1865. 

Mr. HENDERSOisr. — The senator from Ken- 
tucky thinks the Constitution of Louisiana is 
the offspring of military usurpation ; but he does 
not say that the Constitution itself is anti-re- 
publican. 

Mr. Sumner. — I do. 
Mr. Henderson. — You do ? 
Mr. Sumner. — Certainly. 
Mr. Henderson. —The senator from Mas- 
sachusetts says that these State Constitutions 
are not republican in tbnn. Will he tell me in 
what respect '? 

Mr. Sumner. — Because they do not follow 
out the principles of the Constitution of the 
United States. 

Mr. Henderson. — I should like to know 
in what particular. The answer is a very gen- 
eral one indeed. He refuses, then, to specify. 
The senator can answer more particularly 
hereafter if he chooses. He says these Consti- 
tutions do not follow the Constitution of the 
United States. I have looked o\er them, and 
I find no objection to them. The senator from 
Massachusetts says the act of secession took the 
States out. In the name of sense, cannot the 
act of the loyal men bring them back ? 

Mr. Sumner. — Does the senator refer to 
me as having ever said that the act of secession 
took a State out ? 

Mr. Henderson. — I understand the sen- 
ator to claim that these States are in a territo- 
rial condition ; that they are not States ; that, 
by losing their State governments in the act of 
secession, they lose their specific identity as 
States. 

Mr. Sumner. — I would rather the senator 
should use my language than his own wdien he 
undertakes to state my position. I have never 
stated that any act of secession took a State 
out. 1 have always said Just the contrary. No 
act of secession can take a State out of this Union ; 
hut the State continues under the Constitution of 
the United States, subject to all its requirements 
and hehestSj including especially the guaranty of 
a repuhlican form of government. The govern- 
ment of the State is subverted by secession. The 
senator does not recognize it as legal or con- 
stitutional, I beheve, any more than I do. 
Where, then, is the difTerence between us ? 
There is no government which he or I recog- 
nize ; but Ave do hold that the whole region, 
the whole territor}', is under the Constitution 
of the United States, to be protected and 
governed by it. 

Mr. Henderson. — The senator then ad- 
mits that the States are in the Union. Now, I 



32 



ask him if we can restore the Union without 
restoring State governments in the seceded 
States. 

Ml!. Sumner. — That is the desire I have 
most at heart, to restore State governments in 
those States. 

Mr. Henderson. — Tlien I desire to ask 
the senator if the loyal men in one of those 
States acquiesce in the Constitution presented 
here, are they not entitled to govern the State 
under it. 

Mr. Sumner. — If the loyal men, iclrite and 
black, recor/nize it, then it will be republican m 
form. Unless that is done, it will not be. 

Mr. Henderson. — Now, Mr. President, I 
desire to ask the senator if the Congress of 
the United States can interfere with the ritjht 
of suffrage in one of the American StatesTof 
this Union. I put the question to him as a 
constitutional lawyer. 

Mr. Sumxer. — I answer at once as a con- 
stitutional lawyer, that at the present time, under 
the words of the Constitution of the United 
States, declaring that the United States shall 
guarantee to every State a republican form of 
government, it in the houndenduty of the United, 
States by act of Congress to (fuaranlee complete 
freedom to every citizen, and immunity from oil 
oppression, and absolute equality before the laic. 
No government that fails to guarantee these 
things can be recognized as republican in form 
according to the theory of tlie Constitution of 
the United States, lohen the United States are 
called to enforce the constitutional guaranty. 

After further discussion, the following passage 
occurred : — 

Mr. Henderson. — To secure national 
supi-emacy, you must have the aid of State 
authority. For legitimate State authority, you 
must rely upon the loyal voters. 

Mi{. Sumner. — There is where I agree pre- 
cisely with the senator; and I should like to 
hold him to that. He says the loyal me'n must 
form the government, and we should recognize 
that government ; and yet he insists upon a 
mere oligarchy forming it, and an oligarchy of 
the skin. 

Mr. Henderson. — The senator says he 
agrees with me in my position, but insists that 
I am in fovor of an oligarchy. If I am in 
favor of an oligarchy, and he agrees with me, 
then he also wants an oligarchy. [Laughter.] 

Mr. Sumner. — The senator plays upon 
words. 

Mr. Henderson continued his argument at 
length, replying to various objections brought 
against the Louisiana State Government on ac- 
count of the irregularity of the proceedings. 
Upon his statement, that the failure of the reb- 
els to vote did no liarm to the great principles 
of republicanism, the following interruption took 
place : — 



_ Mr. Sumner. —It was the failure of loyal 
citizens to vote that did the damage. 

Mr. Henderson. — I answer that by asking 
what loyal men did Gen. Banks prevent from , 
voting. 

Mr. Sumner. — All the colored race. 

In the Senate, Feb. 27, the same ques- 
tion was still under eonsidetation, when Mr. 
Sumner spoke as follows : — 

Mr. President, I remember last summer that 
good fortune threw me in the path of a distin- 
guished gentleman just returned from Louisi- 
ana. I think he had been present at the sit- 
tings of the convention whose work finds such 
an advocate in my friend from Illinois. At any 
rate, he had been in New Orleans at the time, 
in the discharge of important public duties. In 
reply to an inquiry witli regard to that conven- 
tion, he said, compendiously, that it was "noth- 
ing but a stupendous hoax," — yes, sir, nothing 
but a stupendous hoax. 

Here Mr. Sumner was interrupted by Mr. 
Grimes of Iowa, who said, that, if the Senate 
would give him a committee, he would show 
fraudulent voting in Louisiana. 

Mr. Sumner. — I doubt not that my friend 
from Iowa is right. In my opinion the proposi- 
tion which the senator from Illinois is so earn- 
estly pressing upon the Sertate, when we con- 
sider its origin and character, is in itself very 
little different from a stupendous hoax. I say 
nothing about the convention, for I was not 
there. I did not see it. On that point, I sim- 
ply cite the testimony of another. But the 
proposition of the senatc^r is before us, and we, 
are familiar with its nature. Every moment 
gives us new glimpses of the violence and fraud 
with which it is associated. Perhaps this ex- 
pression I have quoted is hardly grave enough 
in speaking of such a proposition, where mili- 
tary power and injustice to a whole race have 
been enlisted in forming the constitution of a 
State, in defiance of the self-evident truths of 
the Declaration of Independence. The United 
States are bound by the Constitution " to guar- 
antee to every State a republican form of gov- 
ernment." Now, when called to perform this 
guaranty, it is proposed to recognize an oli- 
garchy of the sivin. The pretended State Gov- 
ernment in Louisiana is utterh' indefensible, 
whether you look at its origin or its character.. 
To describe it, I must use plain language. It 
is a mere seven-months' abortion, begotten by 
the bayonet in criminal conjunction with the 
spirit of caste, and born before its time, rickety, 
unformed, unfinished, whose continued exist- 
ence will be a burden, a reproach, and a wrong. 
That is the whole case ; ancl yet the senator 
from Illinois now presses it upon the Senate at 
this moment, to the exclusion of the important 
public business of the country. 



i 




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LiBRARV OF CONGRESS 




013 744 797 6 



